G.R. No.

L-99 November 16, 1945

PIO DURAN, petitioner,

vs.
SALVADOR ABAD SANTOS, Judge of People's Court, respondent.

Marciano Almario for petitioner.

Judge Salvador Abad Santos of People's Court in his own behalf.

JARANILLA, J.:

The pertinent allegations of the petitions are:

That the petitioner is a Filipino political prisoner under the custody of the Director of Prisons in the
New Bilibid Prison, Muntinglupa, Rizal, for not less than three months without any information having
filed against him: That the petitioner filed a petition in the People's Court for his release on bail and
that the Solicitor General recommended that the petitioner be provisionally released on P35,000 bail;
That after hearing the statements of Special Prosecutor V. D. Carpio, in representation of the
Solicitor General, and Atty. Marciano Almario, counsel for the petitioner, which statements are
contained in Appendix E of the petition, the said respondent judge denied the petition for bail on
October 121, 1945, and refused to reconsider it by his order issued on October 15, 1945; and.

That the denial of said petition is a flagrant violation of the Constitution of the Philippines and of
section 19 of Commonwealth Act No. 682, and that the respondent has committed a great abuse of
discretion for which petitioner has no other plain speedy and adequate remedy in the ordinary
course of law.

The respondent judge, in answer to the petition, denies abuse of discretion and alleges that the
reason for the denial of the petition for the release of the petitioner on bail was set forth in his order
of October 15, 1945, which reads as follows:

The evidence against the petitioner, according to said Appendix E of the petition, consists of
documentary proofs received by the Office of Special Prosecutors from the Counter Intelligence
Corps (CIC), which documentary evidence is considered confidential, having been received with that
injunction from the military authorities, and so the special prosecutor who appeared at the hearing in
the court below manifested that he was not free to divulge the contents thereof. The special
prosecutor, however, mentioned in his statements before the People's Court certain facts which are
stated by the respondent judge in his answer to the petition.

It appears that the petitioner was originally detained by the United States Army, which had
investigated the acts of said petitioner and gathered the corresponding evidence; and that after the
hostilities were ended, with the formal acceptance by Japan of the terms of the Allies, the said
petitioner and the evidence gathered against him were turned over to the Commonwealth
Government and the Office of Special Prosecutors for such action as may be warranted. The said
petitioner was detained by the military authorities from July 4 to September 26, 1945, when he was
turned over to the Commonwealth Government, as may be gleaned from Appendix A filed by him in
this case. As a military political prisoner, he could not be bailed out. Now he invokes the provisions
of Commonwealth Act No. 682 creating the People's Court and the Office of Special Prosecutor and
specifically section 19 of said Act, said section reads partly as follows:
 . . . Provided, however, That existing provisions of law to the contrary notwithstanding, the
aforesaid political prisoners may, in the discretion of the People's Court, after due notice to
the Office of Special Prosecutors and hearing, be released on bail, even prior to the
presentation of the corresponding information, unless the Court, finds that there is strong
evidence of the commission of a capital offense . . .

As may be seen the above express provision of law, the release of a detainee on bail, "even prior to
the presentation of the corresponding information," is purely discretionary on the People's Court find
that there is strong evidence of the commission of a capital offense," in which case no bail whatever
can be granted, as the provision appears mandatory. In other words, aside from that, the People's
Court has the absolute discretion to grant bail or not. Having invoked the clear provision of said
section 19 of Act No. 682 for his temporary release on bail, the petitioner cannot attack it as being
illegal or unconstitutional. And it appearing that his case is covered by said exception of the law, it
must be held that he cannot be admitted to bail.

But even if we should concede counsel's contention, for the sake of argument, that the People's
Court has not been given that discretion to deny bail to the petitioner, still the conclusion of the
respondent judge is not unfounded for the following reasons:

First, the special prosecutor stated that the information to be filed in the case would be for treason,
which is "the highest of all crimes" (In re Charge to Grand Jury, 30 F. Cas., No. 18, 269; 2 Curt., 530;
U. S. vs. Lagnason, 3 P. R. A. 247; 3 Phil., 472, U. S. vs. Abad, 1 Phil., 437), penalized with capital
punishment under article 114 of the Revised Penal Code; and

Secondly, the recital by the special prosecutor of the supposed acts committed by the petitioner and
referred to by the respondent judge in his order of October 15, 1945, above quoted, which acts were
not rebutted by counsel for the petitioner at the hearing on the petition for bail, supports the
conclusion and ruling of the People's Court.

It is true that during the oral argument in this case counsel for the petitioner denied the imputation
that the petitioner was the Executive General of the "Makapili," but he openly admitted that at the
hearing before the People's Court he did not make any effort to deny or disprove the said imputation
or the others appearing in Appendix E of the petition. In view thereof, how can we expect the
People's Court not to take into consideration what had been stated then, appearing in said Appendix
E?

Counsel's contention that there was strong have presented evidence to prove that there was strong
evidence of the commission of a capital offense before People's Court could deny bail in this case
was substantially complied with, although the information charging the commission of the crime of
treason had not as yet been filed. We are of the opinion and so hold that hearing set and held for the
purpose (see Appendix E) was amply sufficient for the People's Court to be informed and to
determine whether there was strong evidence of the commission of a capital offense. The special
prosecutor clearly informed the People's Court in the presence of the adverse counsel, in part, as
follows:

. . . I understand strict assurance has been made that all witnesses required to make a
testimony will be considered secret, and that their statements will be held strictly confidential
and if we have to answer that question as propounded by the Court, as I have said, I would
be violating the injunction given to us to consider those documents as confidential. I may
venture, however, to explain by stating several facts which we believe are so well known not
only by the Court or by the Office of the Special Prosecutors by the people as a whole, which
no one can deny, not even the detained petitioner or anyone else, and those facts are as
follows: That the petitioner herein was a member of the Council of the State during the
Japanese occupation. He was the Director of General Affairs of the Kalibapi. He was elected
member of the National Assembly under the puppet Republic. He was Vice-Minister of State
for Home Affairs. He was the Executive General of Makapili. Lastly, he became President of
the New Leaders Association. These facts, I repeat, are things which I venture to say neither
the petitioner nor anyone else can dare deny and therefore, l feel free to divulge without any
violation of trust or confidence. Furthermore, I can state with assuredness that among the
articles of association of the Makapili, of which the petitioner was the Executive General, it is
stated: "To fight the common enemies side by side with other Asians on any front in the
present war." Another: "To collaborate unreservedly and unstintedly with Imperial Japaneses
Army and Navy in the Philippines in such a way and means as may, in the joint judgment of
the Imperial Japanese forces and the association (association meaning Makapili) be deemed
necessary and fruitful."

The case of the petitioner herein by reason of his prominence in social political and court
circles is such that this case has assumed pre-eminence and interest of tremendous
proportion not only in this country but perhaps even in the United States all by reason
known associations, connections and statements made by the detained petitioner publicly
and privately in his advocacy of the Greater East Asia Co-Prosperity Sphere and his
advocacy of Japan as the leading nation in the Orient in the proposed Asiatic Monroeism on
which he had been working for so many years before and during the war, and I take it for
granted even now. And no one can dispute the facts that in his advocacy of this program
aforesaid the petitioner has made statements, as follows: "The flight, of MacArthur once
again shows that the White men's in East Asia is mercenary and imperialistic. He comes to
exploit the people and the natural resources, fill his pockets with as much wealth as can be
obtained irrespective of the means, and later return to his own native land to spend the
declining years of his life in comfortable indolence. He cares not for the defense of any of the
colonies he may have acquired. At first sign of danger he pacts his bag and baggage and
runs away, leaving the native inhabitants to whatever fate awaits them." This appears in an
article written by the detained petitioner in the Tribune of March 22, 1942.

Further, the detained petitioner has said: "We, who have always doubted the sincerity of
occidental disinterestedness in Asia, adhere to the theory that it is only through the unified
efforts of all of all Asiatics that the complete emancipation not only of the Philippines but of
all Asia may be achieved, that is why we are co-operating solely and wholeheartedly with the
Japanese military administration and urge our countrymen to do same." That come from a
radio speech, reported in the Tribune of May 6, 1942.

Again, the detained petitioner has stated: "With the Japanese spirit moving the one hundred
million people of Japan, who are solidly behind the prosecution of the Greater East Asia War
to a successful end, the Great Empire of Japan cannot be beaten in the current war." That
also came from an article reported in the newspaper, Tribune, July 7, 1942.

And on January 30, 1945, there appeared an article in the Tribune an item, as follows:
"Lingayen front, Jan. 27. Makapili members thrust into American lines following the
landing of the invaders in the Lingayen, gulf shores, it was revealed here. Forming death
defying squads, these youthful Filipinos stormed into enemy lines with fixed bayonets
causing heavy casualties among the Americans."

Up to the present time, the Office of Special Prosecutors has not the material time to check
up all the evidence submitted to us by the military authorities. There are more than 4,000
such cases in our hands aid unless we are given enough time it will be very hard for us to go
 over this particular case. Right now, it our conviction that the evidence against the petitioner
is rather convincing. Neither have we formulated the necessary information; but I venture to
say that when we file the necessary information to the Court it would not be for a simple
crime but for treason. I submit, however, the foregoing facts as above stated to give the
Court an idea of the nature of the evidence that will in due time be adduced in support of the
information that we will file. (See Payao vs. Lesaca, 63 Phil., 210.)

In view of the foregoing, it cannot be stated that the petitioner has been deprived of his liberty
without due process of law, because his petition for bail had been set for hearing and he was given
an opportunity to be heard when the above circumstances were submitted to the People's Court,
where it was made to appear satisfactorily that he was being detained due to highly treasonable
activities against the Commonwealth of the Philippines and the United States, which activities would
be charged in the information for a capital offense and punishable by death, and that the evidence in
the case strong.

Wherefore, we find and so hold that the petition is without merit and therefore the same is hereby
ordered dismissed with costs against the petitioner. So ordered.

Feria, De Joya, and Pablo. JJ., and Buenaventura and Santos, JJ., concur.

Separate Opinions

DE LA ROSA, Magistrado Interino, concurrente:

Concurro y voto con la mayoria, en cuanto al resultado.

El Tribunal del Pueblo, al senalar y celebrar vista sobre la solicitud de fianza del recurrente,
concediole, asi como al procurator General, oportunidad de ser oido, y habiendo llegado despues a
la conclusion de que existen pruebas vehementes sobre la comision de un delito grave, no infringio
la Constitucion ni Ley No. 682 al denegar dicha solicitud.

Lo que se ha hecho en el presente caso, en que el Fiscal informo sobre la naturaleza grave del
delito que se imputa y las pruebas con que se cuenta para sostener con eficacia la querella que en
su tiempo seria presentada por el mismo, la relacion de las cuales es suficietemente clar para
convecer preliminarmente al Tribunal, constituye una vista regular para la sustanciacion de una
solicitud para la libertad provisional, bajo fianza, de un detenido. No era necesario que el Fiscal
presentara todas sus pruebas o que se practicase una investigation previa o preliminar, porque en
el primer caso hubiera sido tramitar la causa en su fondo y en el segundo el articulo 22 de la Ley
No. 682 no lo require.

. . . a preliminary examination and/or investigation shall not be required.

Es solo aparente la desarmonia que se arribuye entre el articulo 19 de la Ley No. 682, en su parte
que provee:

. . . Provided, however, That existing provisions of law to the contrary notwithstanding, the
aforesaid political prisoners may, in the discretion of the People's Court, after due notice to
the Office of the Special Prosecutors and hearing, be released on bail, even prior to the
 presentation of the corresponding information, unless the Court finds that there is strong
evidence of the Commission of a capital offense . . .

y la seccion 16 del Articulo III de la Constitucion, que preceptua:

All persons shall before conviction be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong.

La frase "Provided, however, That existing provisions of law to the contrary notwithstanding," de la
parte acotada del articulo 19 de la Ley No. 682, explica que solo se refiere a las leyes del Congreso,
que el Congreso puede deshacer, sin abarcar las disposiciones constitucionales, que el Congreso
no puede invalidar. Ademas como hay que interpretar esa parte de la Ley No. 682 en su espiritu y
sin perder de vista los derechos individuales, resulta una parafrasis del precepto constitucional que
de una manera clara reconce el derecho a la libertad provisional, bajo fianza, cuando la imputacion
no es por un delito grave, caso en el cual es discrecional para el juez el otorgarlo o no.

Si a la expresada parte de la Ley No. 682 se diese una interpretacion literal, el Tribunal del Pueblo
tendria, en los casos en que penden cargos por delitos no capitales, la absoluta discrecion para
conceder o no libertad provisional bajo fianza antes o despues de la presentacion de la
coresspondeinte querella fiscal, por lo mismo que en ello no establece distincion alguna. Mas aun:
la oracion "even prior to the presentation of the corresponding information," denota que dicha
dispocicion, si es aplicable antes de la presentacion de la querella, lo es mas despues de su
archivo. Las leyes del Commonwealth han ido paralelamente con el progresohumano en cuanto
concierno al goce del la otra. No seria ahora justo atribuir a esta Ley no. 682 un motivo reaccionario.

Desmenuzando el texto del expresado precepto constitucional, se halla que la disposicion "all
persons shall before conviction be bailable" es amplia y abarca tanto al que acaba de ser detenido
como a aquel contra quien ya se ha presentado denuncia o querella; y, asimismo, la palabra
"charged" es lata, porque a ninguna persona se le detiene sin cargo, formulado o no formulado
todavia ante los tribunales.

En esto ilustra este precedente:

B. Right to releases in bail. 1. At common law. By the common law all offenses, including
treason, murder, and other felonies, were bailable before indictment found, although the
granting or refusing of each bail in case of capital offense was a matter within the discretion
of the court. (6 Corpus Juris, 953.)

PERFECTO, J., dissenting:

The action by the majority will surely dampen the enthusiasm, the ecstatic the rapturous exultation
with which all the generous spirits the world over received the news of the end of the war on
September 2, 1945, not because of the Allied victory in the global struggle, but because the great
principles of human freedom, the sublime tenets upon which the worth of each individual, man,
woman, and child, is established, the elemental ideas universally recognized as underlying the basic
meaning of mankind's dignity, once again, triumphed against the forces of darkness.
Human liberty suffered a crushing blow. It seems that the struggle for human liberty must be fought
all over again.

"With the formal surrender of the Japanese Empire today, September 2, 1945, the long and terrible
war is at an end," said President Osmea in an official message to the Filipino people, adding: "Our
effort has been devoted ward the paramount task of winning the war. Today the task is done. We
must devote ourselves to the task of winning the peace." (41 Off. Gaz., Sept. 1945, p. 499.) But that
peace cannot be won until and unless the fundamental human freedoms for which millions of lives
were offered in the recent gory holocaust are firmly secured and guaranteed.

More than two millennia ago the following words were written in the pages of the Book of Books,
held the most sacred by the most civilized countries in two hemispheres: "Proclaim liberty throughout
all the land unto all habitants thereof: it shall be a jubilee unto you; shall return every man unto his
possessions, and ye shall return every man unto his family." (Leviticus, 25:20.)

Are we Christians? Do we believe in the teachings of the Bible? Have we faith in the biblical
doctrines which are the vitalizing essentials of the Democracy? How can we" return every man unto
his family" if we deprive him of his personal freedom in utter violation of the cardinal mandates of our
Constitution, wherein it is solemnly enjoined that "No person shall be deprived of his liberty without
due process of law"? How can we "Proclaim liberty throughout all the land unto all the inhabitants",
when we are keeping in bondage one of the citizens of our country in complete disregard of the laws
of the land?

Those of us who have descendants and hope that they will continue living in this land, create
families, bear children, and perpetuate our lineage in unending generations, cannot look without
grate concern at the pernicious consequences of the legal ideology or lack of ideology which permits
the wanton trampling of human liberty, such a this case discloses. We shudder at the thought of the
dangers to personal security and freedom which the future holds as a despairing promise of doom to
our most cherished ideals and aspirations for the happiness of our loved ones, in whose arteries and
veins, when the sorrows and preoccupations and joys of our own life will be eternally silenced within
the folds of cerement, will continue flowing the life-giving streams of our own blood, by which we will
attain a kind of immortality in the unconscious working and endeavors for the perpetuation of the
species.

"Can the liberties of an nation be thought secure" asked Jefferson " when we have removed
their only firm basis, a conviction in the mind of the people these liberties are of the gift of God? That
they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that
God is just; that his justice cannot sleep forever; that considering numbers, nature and natural
means only, a revolution of the wheel of fortune, an exchange of situation is among possible events;
that it may become a probable by supernatural interference. The Almighty has no attribute which can
take sides with us in such as a contest."

That is why he wrote in the Declaration of Independence of the United States these immortal words.
"All men are created equal, they are endowed by their Creator with certain unalienable right; among
these are life, liberty and the pursuit of happiness. To secure these rights governments are
instituted, deriving their power from the consent of the governed. Whenever any form of government
becomes destructive of these ends, it is the right of the people to alter it."

We borrow the following from Senator Elbert D. Thomas:

"Had the social and political significance of Jesus's teachings of the worth of the individual soul
borne its fruit in the practice of the Church, the world might long ago have seen a lasting free
society. For Jesus, all men were brothers and equally precious in the sight of God, their Father. Jew
and Gentile, bond and free, black and white, each was free to work out his own salvation. In the
realm of the spirit the early Christian philosophy exalted the individual, giving him freedom to choose
and to 'bear testimony.'"

The torch of freedom has often bee lighted; it has been burned brightly for brief periods. The flame
has been often burned low, sometimes flickered, but has never been quite extinguished. Always
again it has been raised, here in the cause of religious liberty, there in the cause of political freedom.
It remained for the founders of the American Republic to plan a society wherein all phases of
freedom, of religion, of speech, and of person, should become a reality. And Thomas Jefferson, as
the embodiment of the spirit of Americanism, combining in himself the zeal of all the past apostles of
freedom, thus becomes one of the world's great leaders in man's ancient quest. Because he
gathered together the aspirations of all the fighters for freedom who had gone before, all phases of
liberty were equally important to him. Building upon the foundation laid throughout all past ages, he
became America's first world citizen." (Thomas Jefferson, World Citizen, p. 142.)

Convinced that the principles of human liberty are imperishable, we write this opinion as an appeal
to the sense of justice of the majority.

We must not allow our personal experience during the more than three years of enemy occupation,
our own sufferings under the brutal Nippon regime, our feelings towards those who blindly or
malignantly collaborated with our oppressors, our prejudices against those who in any way helped
the Japanese, to sway our judgment in considering the merits of the case.

All of us have grievances to complain. We, who were fortunate enough to have survived are
mourning for the loss of loved ones, near or distant relatives, friends. All of us were witnesses of the
most abhorrent acts committed by Japanese myrmidons, spies, tools and agents. The ruins in
Manila are constant reminders of a hated recent past. The thousands who lay buried in the debris
will not breathe again the breath of life. It is therefore natural that we should feel very strong feelings
as a result of the bitter experience. It is natural that many things will be seen by us through the
colored prism of such feelings. On the other hand, we have our sworn duty to do justice with
absolute impartiality. The task is not easy. But it is our inescapable duty to do it, no matter what our
feelings and prejudices to impede us to be equal to our official functions as judges.

We must keep always in mind that political offenses are sure to arouse popular emotions,
sometimes uncontrollable. The mob psychology is very contagious. Justices and judges must guard
against the effects of such contagion. That is the reason why Congress, in creating the People's
Court, made it collegiate, a measure which it considered necessary to place the accused of political
offenses, with the special protection, in the same category as other accused in the matter of the
protection of their substantial right in their trials. The protection is special, but it was devised to make
more effective the equal protection of the laws and to avoid discrimination against alleged political
offenders.

We may loathe the role petitioner played under the Japanese regime with all the energies of our
soul. We might not forget what he, did or said with respect to important matters which were of
paramount importance to us as Filipinos. But in the discharge of our judicial functions it is our
imperative duty to set aside our sympathies and aversions, lest we incur in the same pernicious
ideology we detest in the Japanese and those who collaborated with them. Complete detachment
from our personal likes and dislikes in an indispensable element if we should administer real justice.
Law and justice have no personal feelings. Justice has been represented as a blindfolded lady. Right
and wrong have no nationalities, political attachments, or prejudices. We must judge the petition,
forgetting who the petitioner is. If the petition is right, it must be granted no matter how we may
abhor the petitioner or his acts. If the petition is wrong, it must be denied no matter how we may
sympathize with the person or with his lot.

The Constitution of Nazi Germany and the Constitution of Fascist Japan, by express provisions,
guarantee the personal freedom of their respective citizens. The guarantees are substantially the
same as those written in the Philippine Constitution, only with not so nice and perfect details. If the
letter of the German and Japanese Constitution is complied with, the personal liberty of their citizens
will be substantially secure. But those guarantees in the hands of German and Japanese authorities
are just scraps of paper, the same as international treaties and conventions. In such ignoring of
constitutional guarantees consist, among others, the radical difference between totalitarianism and
democracy, between autocratic government and regimes of liberty.

During the enemy occupation we never compromised with the Japanese. But now that the beaten
enemy has been ousted from our country, are we to adopt their hated procedures of trampling upon
the constitutional guarantees for the liberties of our people and citizens? Shall we borrow their
ideology? Shall we adopt their way of thinking?

In dealing with this case, we must forget who the petitioner is, and remember only the sanctity of the
law, the sacredness of our Constitution. Even the Jew in the middle ages was made by Shakespeare
to exclaim: "I crave the law." Shylock says, besides: "If you deny me, file upon your law; There is no
force in the decrees of Venice," A human wreck, a derelict, does not, for the reason of his condition,
lose his rights under our laws. A supposed criminal is entitled to legal protection. Whatever we might
think or feel against the petitioner, whatever our personal prejudices are, it is our duty not to deny
him what the law recognizes as due him.

We have, we must have, a government of laws. The equal protection of the laws shall not be denied
to anyone, rich or poor, old or young, wise or fool, man or woman, noble or lowly, prince or
tatterdemalion, saint or depraved, patriot or traitor, citizen or man without country.

Whatever imputations can be hurled against the petitioner, and seems all that could be made
were already stated by the special prosecutor before the court below we cannot form upon him a
concept worse than the world has formed against the German archcriminals, those responsible,
among others, of the grisly slaughterhouses of the Maidanek, Dachau and Buchenwald, of the
attempted mass wiping out of whole racial groups, the crime newly designated as "genocide." Put
those archcriminals are not being denied the fundamental rights to have fair trial, to be defended by
attorneys to present their evidence, because the denial of such fundamental rights, universally
recognized by the civilized world, will shock the conscience of humanity. Even the repellent General
Yamashita, the man most hated by the Filipinos, is well fed, is provided with all facilities to defend
himself, is allowed to cross-examine the witnesses for the prosecution, and will be allowed to testify
and offer evidence. Is there any reason for giving petitioner herein a deal worse than those
monstrous archcriminals, whose crimes stagger our imagination? The ability to do justice even to
enemies and to persons we hate is precisely one of the inherent virtues of democracy. It is one of its
characteristics making it essentially different from autocracies and dictatorships.

At this moment we cannot refrain from repeating the words the outstanding philosopher-jurist Jhering
wrote in his little big book, "The Struggle for Law ":

" 'I crave the law.' In those four words, the poet has described the relation of law in the subjective, to
law in the objective, sense of the term meaning of the struggle for law, in a manner better than any
philosopher of the law could had done it. These four words change Shylock's claim into a question of
the law of Venice. To what mighty, giant dimensions, does not the weak man grow, when he speaks
these words: It is no longer the Jew demanding his pound of flesh; it is the law of Venice itself
knocking at the door of Justice; for his rights and the law of Venice are one and the same; they both
stand or fall together. And when he finally succumbs under the weight of the judge's decision, who
wipes out his rights by a shocking piece of pleasantry, when we see him pursued by bitter scorn,
bowed, broken, tottering on his way, who can help feeling that in him the law of Venice is humbled;
that it is not the Jew, Shylock, who moves painfully away, but the typical figure of the Jew of the
middle ages, that pariah of society who cried in vain for justice? His fate is eminently tragic, not
because his rights are him, but because he, a Jew of the middle ages, has faith in the law we
might say just as if we were a Christiana faith in the law firm as a rock which nothing can shake,
and which the judge himself feels until the catastrophe breaks upon him like a thunderclap, dispels
the illusion and teaches him that he is only the despise medieval Jew to whom justice is done by
defrauding him.

"The picture of Shylock conjures up another before may mind, the no less historical than poetical
one of Michel Kohlhaas, which Heinrich von Dleist has described in his novel of that name with all
the fascination of truth. Shylock retires from the scene entirely broken down by grief; his strength is
gone and he bows without resistance to the decision of the judge. Not so Michel Kohlhaas. After
every means to obtain his rights, which have been most grievously violated, has been exhausted;
after an act of sinful cabinet justice has closed the way of redress to him, and Justice herself in all
her representatives, even to the highest, has sided with injustice, a feeling of infinite woe overpowers
him at the contemplation of the outrage that has been done him and he exclaims: 'Better be a dog, if
I am to be trampled under foot, than a man'; and he says: The man who refuses me the protection of
the law relegates me to the condition of the savage of the forest, and puts a club in my hand to
defend myself with." He snatches the soiled sword out of the hand of such venal Justice and
brandishes it in a manner that spreads consternation far and wide through the country, causes the
Sate to shake to its very foundations and the prince to tremble on his throne. It is not, however, the
savage feeling of vengeance that animates him; he does not turn murderer and brigand, like Karl
Moor, who wishes "to make the cry of revolt resound through all nature to lead into the fight against
the race of hyenas, air, earth and sea," whose wounded feeling of justice causes him to declare war
against all humanity; but it is a moral idea which urges him forward, the idea that "it is his duty to
entire world to consecrate all his strength to the obtaining of satisfaction and to the guarding of his
fellow-citizens against similar injustice." To this idea he sacrifices everything, his family's happiness,
the honor of his name, all his earthly possessions, his blood, and his life; and he carries on no
aimless war of extermination, for he directs it only against the guilty one, and against all those who
make common cause with him. At last, when the hope of obtaining justice dawns upon him, he
voluntarily down his arms; but, as if chosen to illustrate by example to what depth of ignominy the
disregard of law and dishonor could descend at that time, the safe conduct given him, and the
amnesty are violated, and he ends his life on the place of execution. However, before his life is taken
from him justice is done him, and the thought that he has not fought in vain, that he has restored
respect for the law and preserved his dignity as a human being, makes him smile at the horrors of
death: and, reconciled with himself, the world, and God, he gladly and resolutely follows the
executioner. What reflections does not this legal drama suggest: Here is an honest and good man,
filled with love for his family, with a simple, religious disposition, who becomes an Attila and destroys
with fire and sword the cities in which his enemy has taken refuge. And how is this transformation
effected? By the very quality which lifts him morally high above all his enemies who finally triumph
over him; by his high esteem for the law, his faith in its sacredness, the energy of his genuine,
healthy feeling of legal right. The tragedy of his fate lies in this that his ruin was brought about by the
superiority and nobility of his nature, his lofty feeling of legal right, and his heroic devotion to the
ideal law, which made him oblivious to all else and ready to sacrifice everything for it, in contact with
the miserable world of the time in which the arrogance of the great and powerful was equaled only
by the venality and cowardice of the judges. The crimes which he committed fall much more heavily
on the prince, his functionaries and his judges who forced him out of the way of the law into the way
of lawlessness. For no wrong which man has to endure, no matter how grievous, can at all compare,
at least in the eyes of ingenuous moral feeling, with that which the authority established by God
commits when itself violates the law. Judicial murder is the deadly sin of the law. The guardian and
sentinel of the law is changed into its murderer; the physician strangles his ward. In ancient Rome,
the corrupt judge was punished with death. For the justice which has violated the law there is no
accuser as terrible as the sombre, reproachful form of the criminal made a criminal by his wounded
feeling of legal right it is its own bloody shadow. The victim of corrupt and partial justice is driven
almost violently out of the way the executor of his own rights, and it not infrequently happens that,
overshooting the mark, he becomes the sworn enemy of society, robber and a murderer. If, like
Michael Kohlhaas, his nature be noble and moral, it may guard him satisfaction. Here the struggle
for law becomes a criminal, and by suffering the penalty of his crime, a martyr to his feeling of legal
right. It is said that the blood of martyrs does not flow in vain, and the saying may have been true of
him. It may be that his warning shadow sufficed for a long time to make the legal oppression of
which he was victim an impossibility.

"In conjuring up this shadows, I have desired to show by a striking example how far the very man
whose sentiment of legal right strongest and most ideal may go astray when the imperfection of legal
institutions refuses him satisfaction. Here the struggle against the law. The feeling of legal right, left
in the lurch by the power which should protect it, itself abandons the ground of the law and
endeavors, by helping itself, to obtain what ignorance, bad will, or impotence refuse it. And it is not
only a few very strong and violent characters, in which the national feeling of legal right raise its
protest against such a condition of things, but this protest is sometimes repeated by the whole
population under certain forms, which according to their object or to the manner in which the whole
people or a definite class look upon them, or apply them, may be considered as popular substitutes
for, and accessories to, the institutions of the state."

I. ELEMENTAL PRINCIPLES OF LAW ON PERSONAL LIBERTY

Be proceeding further, we must be allowed to remember some of the elemental principles of law on
personal liberty.

The right of personal liberty consist in the power of locomotion, of changing situation, or moving
one's own inclination may direct without imprisonment or restraint, unless by due course of law. (1
Bl. Com., 135; Butchers' Union, etc., Co. vs. Crescent City, etc., Co., 111 U.S. 746; 28 Law. ed.,
585; In Matter of Jacobs, N.Y., 98.)

This right is a natural one such as has ever been the birthright of every freeman, even in those ages
before civilization had exercised its softening influence upon man's passions, and is now guarded
with jealous care by that inexorable mistress, "the law of the land." (The Trustees of Dartmouth
College vs. Woodward, 4 Wheat. [U.S.] 518; 4 Law. ed., 629.)

Due process of law means that whatever the legal proceeding may be, it must be enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and preserves the principles of
liberty and justice. (Hurtado vs. California, 110 U. S., 516; 28 Law. ed., 232; Roowan vs. State 30
Wis., 129; King vs. Berchet, 1 Show. [Eng. K. B.], 106; R. vs.Ingham, 5 B. & S. (Eng. Q. B.), 257;
Westervelt vs. Gregg, 12 N. Y., 202; Bank of Columbia vs. Ikely, 4 Wheat. [U, S.], 235; 4 Law. ed.,
559; Brown vs. Levee Commissioners, 50 Miss., 468; Davidson vs. New Orleans, 96 U.S., 97; 24
Law. ed., 616.) lt means that neither life, that neither life, liberty, nor property can be taken, nor the
enjoyment thereof impaired, except in the course of the regular administration of the law in the
established tribunals. (Ex parteVirginia, 100 U. S., 366; 65 Law. ed., 686.)

Therefore an arrest without a warrant, where one is required by law, is not due process of law.
(Muscoe vs. Com., 86 Va., 443, 10 S. E., 534; State vs. James, 78 N. C., 455;
Trustees vs. Schroeder, 58 Ill., 353.) But if there is likely to be a failure of justice for want of a
magistrate to issue a warrant, an officer may arrest without a warrant. (Dixon vs. State, 12 Ga. App.,
17; 76 S. E., 537.) Waters vs. Walkover Shoe Co., Ga. ; 82 S. E., 537.) And an arrest without a
warrant, where one is necessary, may be waived by the defendant pleading guilty to the complaint
contained in a subsequently issued warrant. (People vs. Lowerie, 163 Mich., 514; 128 N. W., 741.)

Where a warrant is required by existing laws, an authority to arrest without a warrant cannot be
implied from a general grant to a municipality of power to arrest.(Gunderson vs. Struebing, 125 Wis.,
173; 104 N. W., 149.)

Relating to the higher crimes, due process of law is said to denote a lawful indictment or
presentiment of good and lawful men, (Coke, 2d Insti., 50; affirmed in Jones vs. Robbins, 8 Gray
[Mass.], 329, in which see dissenting opinion by Justice Merrick; disaffirmed in
Hurtado vs. California, supra cit., in which see dissenting opinion by Justice Harlan. See
also Taylor vs. Porter, 4 Hill [N.Y.], 140; Hoke vs. Henderson, 4 Dev. [N.C.], 1; Jones vs. Perrey, 10
Yerger [Tenn.], 59; 3 Story on Const. U.S. 661; 2 vs. Kent's Com., 13; Saco vs. Wentworth, 37 Me.,
172; Emerick vs.Harris, 1 Binn.,[Pa.], 416; Murphy vs. People, 2 Cow. [N.Y.] 815; Jackon vs. Wood,
2 Conn., 819; Beers vs. Beers, 4 Conn., 535) and a public trial, before a court of competent
jurisdiction. Therefore, where the court at the trial of one charged with murder, directed an officers to
stand at the door of the court-room "and see that the room is not overcrowded, but all respectable
citizens be admitted, and have an opportunity to get in when they shall apply," it was held that the
right of the accused to a public trial, guaranteed to him by the constitution, had been violated.
(People vs. Murray, 89 Mich., 276; 50 N.W., 995.)

The government has the right to control its subjects up to that point where society is safe, but it has
no right to go beyond the point of safety. (Position of Ferrier, 103 II., 373.) Any law which restrains a
man from doing mischief to his follow-man increases the personal liberty mankind, but every wanton
and causeless restraint of the will of the subject is a degree of tyranny. (1 Bl. Com. 126.)

It is one of the most commendable features of our republican form a government that our equal just,
and impartial, and that the humblest member of the society has rights for the infraction of those
rights, that are not exceeded by the rights or remedies of any other man, no matter how high his
station. No officer of the law can with impunity, set those rights at defiance. All officers of the
government, from the highest to the lowest, are creatures of the law, and are bound to obey it.

It is, therefore, removed from the whim of ignorance of any magistrate to issue, or of any person to
serve legal process whatever unless the provisions of law be strictly followed; and any restraint of a
person, to serve any legal process of law, amounts to a false imprisonment, for which both
magistrate and officer may be liable in damages to the to the person deprived of his liberty, and the
imprisonment may also be made the subject of a criminal prosecution. (Fisher vs. McGirr, 1 Gray
[Mass.], 45; Stetson vs. Packer, 7 Cush [Mass.], 564; Stephens vs. Wilkins, 6 Pa. St., 260;
Emery vs. Hapgood, 7 Gray [Mass.], 55; Rafferty vs. People, 69 Ill., 11; Gurney vs. Tufts, 37 Me.,
130; Wise vs. Withers, 3 Cranch [U. S.], 337; 2 Law. ed., 559; Entick vs. Carrington, 2 Wils. [Eng.
C.P.], 275; Groome vs. Forrester, 5 M. & S. [Eng. K.B.], 314; Allen vs. Gray, 11 Conn., 95.)

A magistrate who illegally issues a warrant without a sworn complaint is liable for trespass on an
arrest made on such warrant, and he cannot justify by showing that he had a reasonable suspicion
that an offense had been committed. (McGuinness vs. Da Foe, 3 C.C.C. [Can.], 139;
Campbell vs. Welsh, 18 C.C.C. [Can.], 316; Papillo vs.R., 20 C.C.C. [Can.], 329.)

II. THE FACTS IN THIS CASE

With the above legal axioms in mind, let us consider the facts in this case.

Petitioner alleges that he is a Filipino political prisoner detained in the New Bilibid Prison in
Muntinglupa, under the custody of the Director of Prison; that on October 4, 1945, he filed with the
People's Court a petition for a writ of habeas corpus, with allegations and prayer for provisional
release on bond, in case his absolute freedom cannot be, for some reason, granted; that on October
5, 1945, he withdrew said petition for a writ of habeas corpus in order to stand solely on his
allegations and petition for provisional released on bond; that on October 6, the Solicitor General
submitted a recommendation to the People's Court to allow petitioner to be released provisionally on
a bail P35,000, "on the strength of the evidence" in his possession; that respondent Judge issued an
order setting the case for hearing on October 8, requiring the Solicitor General to appear at said
hearing "for the purpose of giving such information to the Court as may enable it to determined
whether the case is bailable or not and, if bailable, what amount should be required; that at the
hearing Special Prosecutor V. D. Carpio, representing the Solicitor General, manifested that he
refused to reveal their evidence, adding that they cannot certify to the degree of truthfulness of said
evidence for the reason that they have not been able to check them up, but then recited a series of
charges against the petitioner, which according to him, were of public knowledge; that petitioner filed
a memorandum citing the doctrine established by the Supreme Court in the case of People vs.
Marcos (G.R. No. 46490); that on October 1, respondent Judge issued an order denying the petition
for provisional release on bail without stating any reason in support thereof; that immediately upon
receipt of said order, petitioner filed a motion for reconsideration based on three grounds, namely:
(a) that the Solicitor General recommended that petition be granted upon on a bail of P35,000; (b)
that the Solicitor General did not reveal any evidence against the petitioner; (c) that refusal to
disclose such evidence entitled petitioner to bail; and that on October 15 the motion for
reconsideration was denied.

In the order of denial respondent judge stated the following grounds:

"The detainee's adherence to the enemy as manifested by his utterances and activities during the
Japanese domination specially as Executive General of the Makapili; as Director of General Affairs
of the Kalibapi; as Vice-Minister of State for Home Affairs; as member of the Council of State; as
member of the National Assembly under the Japanese sponsored Philippine Republic, and as
President of the New Leaders' Association historical facts of contemporary history and of public
knowledge which the petitioner cannot deny makes the case against him quite serious and may
necessitate the imposition of the capital punishment."

It is contended by petitioner that the action of the respondent is a deliberate transgression of the
fundamental law of the land, invoking for said purpose the following:

All persons shall before conviction be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong. Excessive bail shall not be required.
(Art. III sec. No. 16, Constitution of the Philippines.)

Petitioner invokes, too, the provision of section 19 of Commonwealth Act No. 682, creating the
People's Court, wherein it is provided that "existing provisions of law to the contrary notwithstanding,
the aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the
Office of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the
corresponding information, unless the Court finds that there is strong evidence of a capital offense."

It is also alleged by petitioner that he is being detained for no less than three months and no
information has been filed against him so far.
In the petition it is prayed that the orders of the respondent Judge of October 12 and October 15, be
annulled, and respondent be directed to enter a new order granting the petition for the provisional
release of petitioner on bail not to exceed P20,000.

III. PETITIONER IS DETAINED WITHOUT DUE PROCESS OF LAW

The recital of the undisputed facts of this case shows conclusively to any unscleroid brains that
petitioner is actually being deprived of his liberty without due process of law.

It appears that petitioner surrendered to the American forces on July 4, 1945, and remained as
prisoner of war of said forces until he was delivered on September 26, 1945, to the Government of
the Commonwealth of the Philippines.

There is absolutely no showing of any official order issued by any authority of the Commonwealth
Government by which petitioner should be detained or restrained of his personal liberty. There is
absolutely no law which authorizes his detention. There is not any lawful act from the executive
department which decrees the deprivation of petitioner's liberty. There is absolutely no judicial
decision, resolution, order, or decree issued by a competent tribunal ordering the detention of
petitioner.

Process is a writ, warrant, subpoena, or other formal writing issued by authority of law; also the
means of accomplishing an end, including judicial proceedings. (3 Bl. Com., 279;
Gollobitsch vs. Rainbow, 84 Iowa, 567.) The word "process" is also used as a general term to cover
all the written means of compelling a defendant to appear in court.

Under the circumstances, we are of opinion that petitioner enjoys the absolute constitutional right to
be restored to his personal freedom.

The Philippine Constitution provides:

No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws. (Art. III, sec. 1, Constitution of the
Philippines.)

Petitioner is deprived of his liberty without due process of law, without any legal process at all.

We have already stated our stand on this question in our two opinion in the case of Raquiza vs.
Bradford (G.R. No. L-44, p. 76, ante), and in the case of Reyes vs. Crisologo (G. R. No. L-54, p.
236, ante).

In the first case, petitioners Raquiza et al., were under the custody of the American armed forces
exactly in the same situation as petitioner herein was before his transfer to the Commonwealth
Government.

Raquiza et al., were political prisoners detained without any process of law, and we voted that they
were entitled to their personal freedom and for the issuance of the writ of habeas corpus they prayed
for.

In said case, a majority of this Court voted for the denial of the petition upon the assumption that this
Court has no jurisdiction to issue the writ when petitioners were under the custody of the United
States Army, stationed in the Philippines, and assuming that war has not ended yet, probably
without knowledge of the official message issued to the Filipino people by President Sergio Osmea
on September 2, 1945, wherein the Chief Magistrate of the nation announced the end of war as said
day.

Circumstances have changed.

Petitioner is not now under the custody of the American Army. He is under the custody of the
Philippine Government. He is under custody of civil Filipino officials. War has ended according to the
official declaration of the Chief Executive of the Philippines. Therefore, the claim for restoration of
liberty is still stronger in regards to the herein petitioner.

It is true that petitioner filed a petition for a writ of habeas corpus with the understanding that, if said
petition is denied, he prayed to be allowed to enjoy provisional liberty on bail. It is true also that he
changed his alternative petition to stand only on the petition to be allowed to be free on bail. It is
true, however, that the constitutional right to personal freedom cannot be waived. And it is also true
that the Rules of Court are not so particular about procedure technicality in habeas corpus cases.
Section 9 of Rule provides:

SEC. 9 Defect of form. No writ of habeas corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody or under whose restraint the party
imprisoned or restrained is held and the court or judge before whom he is to be brought.

We believe, therefore, that, under the circumstances, the petition might be considered substantially
as one for habeas corpus, and we are duty bound to grant it.

IV. PETITIONER HAS AN ABSOLUTE RIGHT TO HIS LIBERTY, MUCH MORE ON BAIL

There being no legal process which justifies the restraining of liberty of petitioner, the latter has an
absolute right to be set at liberty without any condition. Petitioner erred in withdrawing in the court
below his petition for habeas corpus, instead of pressing that the same be acted upon.

If petitioner is entitled to be free without any condition, without the duty of putting up any bail, there is
more reasons for granting his petition to be given his freedom when he offers to accept the condition
of putting up a bail, and respondent judge committed, not only an error of law, but also a grave
injustice in denying the petition of petitioner to be released on bail.

Petitioner filed his petition for a writ of habeas corpus on October 4, 1945, praying to be discharged
from further custody and imprisonment or, at least, be granted provisional liberty on a reasonable
bond not to exceed P10,000.

On October 5, petitioner withdraw his petition for a writ of habeas corpus "for personal reasons
which need not be expressed," standing on his alternative petition for provisional release on bond,
and prayed that the Solicitor General be requested to make his comment and recommendation on
said alternative petition for provisional release.

On October 6, the Solicitor General, represented by Special Prosecutor Macario M. Peralta, filed a
recommendation stating "that on the strength of the evidence on record, the reasonable bail
recommended for the provisional release of petitioner is P35,000."

On the same date, October 6, Judge R. Nepomuceno, of the People's Court, upon receiving the
favorable recommendation of the Solicitor General, set the petition for provisional release on bail for
hearing on October 8, and required the Solicitor General "to appear at the hearing for the purpose of
giving such information to the court as may enable it to determine whether the case is bailable or not
and, if bailable, what amount should be required."

At the hearing no evidence has been presented because, as Special Prosecutor Carpio said, "the
office has not the material time to check up all the evidence submitted to us by the military
authorities," and neither have we formulated the necessary information," and that "the evidence is
such confidential in nature that we are not in a position to divulge it at this time."

The information was given, among others, after Judge Nepomuceno asked: "What evidence does
the Solicitor General have with respect to the prisoner which will enable this court to determine
whether the offense for which he is held in custody is bailable or not?"

The papers in connection with the case have been received from the military authorities and, as
Special Prosecutor Carpio said, "We have had no chance to check up all those documents or to
verify the truthfulness of the statements therein made to enable us to say the degree of the truth or
veracity of the facts therein contained."

After said hearing, petitioner's counsel submitted a memorandum, invoking the doctrine laid down by
this Supreme Court in the case of Marcos (G. R. No. 46490) wherein it was stated that the petition
for provisional release must be set for hearing in which the prosecution should present its evidence,
the same as the defense, to enable the court to determine if the offense is bailable or not.

On October 12, respondent Judge Salvador Abad Santos issued the order of denial worded as
follows: "After due hearing of the petition for provisional release on bail of the political prisoner, Pio
Duran, the court has arrived at the conclusion that the petition should be, as it is hereby, denied."

Immediately, on the said day, petitioner's counsel filed a motion for reconsideration, which was
denied in the order issued on October 15.

No information or formal charges having been filed against petitioner, there is absolutely no legal
process to justify his detention. But on the hypothesis that a legal fiction can be accepted to the
effect that such information or formal charges for the crime of treason (the one mentioned by Special
Prosecutor Carpio), may be taken as filed, though not a scintilla of evidence has been presented, the
case stands on all fours with the Marcos case, wherein the accused was granted provisional release
on bail, because the prosecution, like what Special Prosecutor Carpio did refused to divulge the
evidence against the accused.

In the light of the doctrine established in the Marcos case, the court had no other alternative than to
grant the provisional release on bail.

The position of the petitioner became still stronger if we take into consideration the fact that the
Solicitor General, not only did not oppose the petition, but expressly agreed to it, recommending that
the reasonable bail "for the provisional release of petitioner is P35,000."

V. SECTION 19 OF COMMONWEALTH ACT NO. 682

Now let us see if section 19 of Commonwealth Act. No. 682, creating the People's Court, may in any
way justify the action of respondent judge.
There are three parts in said section the principal provision and two provisos. The principal
provision commands the Office of Special Prosecutors to receive all records, documents, exhibits
and such other things as the Government of the United States may have turned over in connection
with and/or affecting political prisoners, examine them "and take, as speedily as possible, such
action as may be proper."

The second proviso suspends for a period of six months the provisions of article 125 of the Revised
Penal Code, "insofar as the aforesaid political prisoners are concerned, in the interest of public
security." It must be remembered that before the enactment of Commonwealth Act No. 682, said
article has been suspended by executive order for a period of thirty days.

The text of the first proviso is as follows:

That existing provisions of law to the contrary notwithstanding, the aforesaid political
prisoners may, in the discretion of the People's Court, after due notice to the Office of the
Special Prosecutors and hearing, be released on bail, even prior to the presentation of the
corresponding information, unless the court finds that there is strong evidence of the
commission of a capital offense.

The provision authorizes that the political prisoners in question "may be released on bail, even prior
to the presentation of the corresponding information," and may be done "existing provisions of law to
the contrary notwithstanding."

No one has been able to point out what and which are the alluded "existing provisions of law to the
contrary notwithstanding." But it seems that Congress inserted this sentence as a saving measure,
in order to avoid any possible loophole. Considering the fact that the law was enacted in a special
legislative session, when not enough time for research was available, and the urgency of the
measure, in view of the impending transfer by the U.S. Army of about 4,000 political prisoners to the
Commonwealth Government, not being prohibit the release on bail of a detained political prisoner,
"even prior to the presentation of the corresponding information," the authors of the bill deemed it
wise to insert this sentence just in case, so as to avoid by lack of foresight the defeat of the
legislative main purpose, that is, to permit said political prisoners to be released on bail "even prior to
the presentation of the corresponding information, unless the court finds that there is strong
evidence of the commission of a capital offense."

The proviso grants the People's Court discretion. But, discretion in what? We must assume that the
discretion granted must be construed in the sense that the same may be exercised in cases wherein
it was not heretofore granted by law. And it is reasonable to assume that the discretion granted is to
the effect that the People's Court may exercise jurisdiction to order the release on bail of political
prisoners "even prior to the presentation of the corresponding information." It is so, because before
the presentation of said information, Congress believed that the court had no jurisdiction to act upon
a petition for release on bail.

The word "discretion" as used in section 19 of Commonwealth Act. No. 682 cannot be construed in
the sense that the People's Court may not order the release on bail of a political prisoner, once it
exercise jurisdiction on a petition to said effect.

"Unless the Court finds that there is strong evidence of the commission of a capital offense," it has
no power to deny a petition for release on bail, because
 All persons shall, before conviction, be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong. (Sec. 1: 15, Art. III, Constitution of the
Philippines.)

Congress could not have intended to defeat or to violate this specific and imperative mandate of the
Constitution. It is one of the principles of legal hermeneutics that the legislative intent must be
construed not to violate any constitutional provisions, unless it is impossible to give an interpretation
different from the law as worded.

The "discretion" granted by Congress is only to take or not to take cognizance of a petition for
"release on bail, even prior to the presentation of the corresponding information." If the People's
Court refuses to take cognizance of such a petition, the prisoner has always open the doors to file a
petition for a writ of habeas corpus, the privilege not having been suspended.

In granting such discretion, undoubtedly Congress has in mind that if the political prisoners in
question are not allowed to be released on bail, they might press the courts with hundreds or
thousands of petitions for writs of habeas corpus.

Of course, even in cases of capital offenses, the courts are empowered to allow the accused to be
bailed, although in such cases, the accused cannot invoke any constitutional right when the
evidence is strong. (People vs. Baez, G. R. No. L-26 and People vs. Samano, G. R. No. L-27, 41
Off. Gaz., 888.)

VI. THE MAJORITY INTERPRETATION

"As a military political prisoner so the majority opinion runs he (the petitioner) could not be
bailed out," a statement which will look in vain for a legal support, especially in peace time.

Then coming to construe the provision of section 19 of Commonwealth Act No. 682, the majority
opinion declares that the power to grant release on bail is purely discretionary on the court. The very
words used are scilicet: "As may be seen from the above express provision of law, the release of a
detainee on bail, 'even prior to the presentation of the corresponding information,' is purely
discretionary on the People's Court. The only exception to it is when 'the Court finds that there is
strong evidence of the commission of a capital offense', in which case no bail whatever can be
granted, at the provision appears mandatory. In other words, aside from that, the People's Court has
the absolute discretion to grant bail or not."

The wording of section 19, which unfortunately is not a model of legislative perspicuity, may
apparently justify the interpretation of the majority. But in view of the provisions of the Constitution,
as far as possible, we must avoid reading in the lay a legislative intention violative of specific
constitutional mandate, such as the one making it imperative to allow all persons to be bailed before
final conviction, except when charged with capital offense and the evidence of guilt is strong.

If the interpretation of the majority is corrected, then we must be compelled to declare section 19 of
Commonwealth Act No. 682 unconstitutional, where it gives the People's Court absolute
discretionary power to grant or to deny the petition of a prisoner to be released on bail, a power so
unlimited that it cannot fail to remind us of the abhorrent absolution of a judicial dictatorship.

When a prisoner or a detainee is charge with offenses other than capital, before final conviction, he
is entitled to be bailed by sufficient sureties, and no court has power nor authority to exercise
discretion whether to grant or to deny the release, because to deny it is tantamount to an abusive
dereliction of duty, to trampling one of the fundamental rights held sacred by our people, to reducing
our Constitution to a mere scrap of paper.

The Constitution grants discretion to deny a petition for release on bail only in cases wherein the
accused are charged with capital offenses and the evidence of guilt is strong. But a court is
empowered to grant or to deny the petition for release in accordance with the doctrine we have
already stated in our opinion in the cases of People vs. Baez (G.R. No. L-26), and People vs.
Samano (G. R. No. L- 27, 41 Off. Gaz., 888).

VII. APPLICATION OF THE BAIL CLAUSE OF THE CONSTITUTION TO CASES WHEREIN NO

INFORMATION HAS BEEN FILED

Evidently the majority assumes the position that, because the corresponding information for a
criminal offense has not as yet been filed against the petitioner, the bail clause of the Constitution
which provides that "all persons shall, before conviction, be bailable by sufficient sureties, except
those charged with capital offenses when evidence of guilt is strong," is not applicable to the present
case, excluding petitioner from the constitutional description of "all persons."

It interprets the words "all persons" used by the Constitution as meaning "not all persons." It is based
on the false assumption that where the drafters of our Constitution wrote the word "all," in fact, they
wrote "not all," that is, the very opposite of the simple meaning, universally understood, of the word
"all."

The Constitution provides that "all persons shall, before conviction, be able," but the majority opines
that this provision cannot be invoked in this case for the reason that the corresponding information
has not as yet been filed against the petitioner.

Why? Is it because the information has not yet been filed, petitioner ceased on be included within
the words "all persons"? Are individuals against whom no information for any offense has been filed
not person"? Since when have those against whom no information for a criminal offense has been
filed ceased to be person"? Since when can be word "person"? only applied to accused in an
information? What about us, the remaining 18 million Filipinos?

The untenability of the majority's proposition becomes self-evident by the absurd consequences to
which it immediately and necessarily leads.

Where in the Constitution is written "all person", unless we are unable to read, we must read simply
"all person." And when petitioner filed the petition in this case, and we accepted it gave it due
course, ordered respondent judge to answer it, allowed both parties to argue this case in a public
hearing, it is presumed that we took for granted that petitioner is endowed with the essential
attributes and qualities of a person. This Supreme Court is not supposed to accept and entertain any
petition coming from any being not a person, as anyhow, the act of filing a petition before this Court
can exclusively be performed by a person.

A petitioner is a person, whether an information has been filed against him or not as yet; he is
included among the "all person" to whom the Constitution grants the fundamental right to be bailed
before final conviction for an offense.

The majority's theory of exempting from the words have those against whom no information for a
criminal "all persons" all those against whom no information for an offense has as yet been filed
leads to the additional absurdity of placing persons, against whom no information has been filed, in a
more precarious and disadvantageous position than person against whom no information for a
criminal offense has been filed the right to enjoy freedom, which is reorganized and enjoyed by
those who are accused.

We cannot pass the following statement in the majority opinion unchallenged: Having invoked the
clear provision of section 19 of Act No. 682 for his temporary release on bail, the petitioner cannot,
therefore, attack it as being illegal or unconstitutional.".

The proposition is begging the question.

Petitioner interprets section 19 of Commonwealth Act No. 682, and then wants the Supreme Court to
interpret it, as in consonance with the bail clause of the Constitution and, interpreted in that way,
there is no person for the petitioner to attack its constitutionality.

But the majority opinion gives said section a construction which decidedly places it in a headlong
conflict with the bail clause for the Constitution. If this is the case, we do not understand how
petitioner, or any other else, can be precluded from impugning the validity of such section on
constitutional grounds.

Petitioner invokes said section 19 on the assumption that it is to be interpreted as not running
counter to any constitutional mandate.

Being otherwise construed, he is entitled to attack the correctness of such interpretation and, falling
in that endeavor, it is his right and, more than right, the civic duty to denounce a legal provision
which violates the fundamental of the land and try all he can to have it invalidated.

VIII. NO MATTER WHAT THE MAJORITY SAY, THERE IS AN ESSENTIAL DIFFERENCE

BETWEEN MERE STATEMENT OR RECITAL OF SUPPOSED ACTS AND EVIDENCE.

In the majority opinion there appears a deplorable confusion, by elevating the mere statements
made by Special Prosecutor Carpio before the People's Court to the rank and category of an
evidence.

In the majority opinion we read:

Counsel's contention that the general special prosecutor should have presented evidence to
prove that there was strong evidence of a commission of a capital before the People's Court
could deny bail in this case was substantially complied with, although the information
charging the commission of the crime of treason had not as yet being filed. We are of the
opinion and so hold that the hearing set and held for the purpose (seeAppendix E) was
amply sufficient for the People's Court to be informed and determined whether there was a
strong evidence of the commission of a capital offense. The special prosecutor clearly
informed the People's Court in the presence of the adverse counsel, in a part, as follow;
(Here follows quotations of a long statements made by special prosecutor as appearing in
Appendix E.)

By the foregoing, statement, the majority wipes out completely all laws, decisions, rules, resolution,
and jurisprudence about evidence, its concept and its indispensable and important role in court
proceeding and in the administration of justice.

Section 1 of Judicial Rule 123, as promulgated by this very Supreme Court, provided:
 Evidence defined. Evidence is the means, sanctioned by this rule, of ascertaining in a
judicial proceeding the truth respecting a matter of fact.

There are 100 sections in Judicial 123, but there is nothing in those 100 sections authorizing the
proposition of the majority to the effect that the statements made by the special prosecutor before
the People's Court can take the place of an evidence.

Soon we will be ten and one score years since we were authorized to practice law as a profession.
In our long experience with law we never had the change of seeing confused a mere statement with
an evidence.

It seems that from the promulgation of the decision in this case our concepts about a mere
statement and an evidence will undergo a radical revision. Our courts of justice and the bar will have
to face the perplexing situation which the revision will create. Law textbooks and even dictionaries
must have to be revised too. We are afraid, notwithstanding, that the future will appear dark and
hopeless. If more statements are considered evidence, we are afraid the administration of justice will
suffer a complete frustration. We tried to see light in the confusion between mere statements and
evidence, but we can not glean even the flickering flashes of a firefly in the gloom and darkness of
the future juridical night.

Although implicitly maintaining that the bail clause of the Constitution is not applicable to petitioner's
case, we cannot fail to perceive in the majority opinion a weak attempt to show in some way that
petitioner is charged with a capital offense and the evidence of guilt is strong and, therefore,
respondent judge had not violated the bail clause of the Constitution.

But the attempt appears futile if we pause for a while to analyze the line of reasoning followed in the
majority opinion.

In runs as follows: "But even if we should concede counsel's People's Court had not been given that
direction to deny bail to the petitioner, still the conclusion of the respondent judge is not unfounded;"
because "First, the special prosecutor stated that the information to be filed in the case would be for
treason," and Secondly, the recital by the special prosecutor of the supposed acts committed by the
petitioner . . . supports the conclusion and ruling of the People's Court."

The Constitution provides that: All persons shall before conviction be bailable by sufficient sureties,
except those charged with capital offenses when evidence of guilt is strong." (Art. III, sec. 1, No. 16,
Constitution of the Philippines.)

From the foregoing, it can be readily seen that, by the very words of the majority, none of the two
essential elements required by the Constitution to concur in cases where denial of bail is permissible
exists in the present case.

The first element is that petitioner must be "charged with capital offense," and according to what we
read in the majority's opinion, no charge has as yet been filed, because the special prosecutor stated
that the information is yet "to be filed in the case." .

The second constitutional element is "when evidence of guilt is strong." In the present case, not an
iota of evidence has been presented to that effect. Nobody will seriously attempt to elevate to the
category of evidence the "recital by the special prosecutor of the supposed of the supposed acts
committed by the petitioner." Otherwise, the rights of all citizens, including the fundamental ones
life, liberty property, honor will be placed at the mercy of any special prosecutor.
Huge amounts of property and accumulated riches and treasure were destroyed, millions of lives
were sacrificed, untold sufferings were endured by the remaining hundreds of millions of souls to
free the earth from the scourge of tyranny of Mussolini, Hitler, No greater tragedy can be inflicted on
our people if the tyranny of the archcriminals is to be replaced by that of the special prosecutors,
whose more "recital" of supposed acts is evidence enough to prove the guilt of any person, making
said "recital" as powerful as a dreaded imperial ukase.

IX. THE DENIAL OF THE PETITION IS VIOLATIVE OF THE INTERNATIONAL GUARANTEES

CONTAINED IN THE CHARTER OF THE UNITED NATIONS.

Liberty is one of the fundamental human freedom guaranteed, not only in the Constitution of the
Philippines, but also in the Charter of the United Nations, which is in full force in our country.

The denial of the petition is, therefore, violative of the principles enunciated in said charter, a
veritable International Constitution by which the United Nations, one of them the Philippines, became
organized virtually as a social unit under the jurisdiction of a General Assembly and a Security
Council as a kind of world governmental organisms.

We quote from the Charter of the United Nations:

CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the equal rights of men and women and of
nations large and small, and to establish conditions under which justice and respect for the
obligations arising from the treaties and other sources of International Law can be
maintained, and to promote social progress and better standard of life in larger freedom,

xxx xxx xxx

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

According our respective Governments, through representatives assembled in the City of San
Francisco, who have exhibit their full powers found to be in good and due form, have agreed to the
present Charter of the United Nations and do hereby establish an international organization to be
known as the United Nations.

"Article 1

xxx xxx xxx

"3. To achieve international cooperation in solving international problems of an economic, social,

cultural or humanitarian and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion: and

"4. To be a center for harmonizing the actions of nation in the attainment of these common ends.
 xxx xxx xxx

"Article 13

"1. The General Assembly shall initiate studies and make recommendations for the purpose of:

b. promoting international cooperation in the economic, social, cultural, educational, and

health fields, and assisting in the realization of human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.

xxx xxx xxx

"Article 55

With a view to the creation of condition of stability and well being which are necessary for
peaceful and friendly relations among nations based on respect for the principles equal rights
and self determination of peoples, the United Nations shall promote:

xxx xxx xxx

c. universal respect for, and observation of human rights and fundamentals freedom for all
without distinction as to race, sex, language, or religion.

The present controversy is part of the test mentioned by President Osmea when on the occasion of
the 38th anniversary of the First Philippine Assembly, on October 16, 1945, that statesman said: "As
we face the future amid the dire aftermath of the bitterly destructive war, the world is again watching
the Philippines for we faced the greatest test in all our history whether this nation, conceived in
self-respect and dedicated to the principles of freedom, democracy and the right of a common man,
can rise out of the ashes and build a land of promise for all." (Off. Gas., October, 1945, p. 532.)

Upon signing Commonwealth Act No. 682 on September 25, 1945, the President said: "we can
assure the Filipino people and the whole world that all who are accused of collaboration with the
enemy will be tried by the processes of law and justice, which are firmly established here as they are
elsewhere in the civilized world." (Off. Gas., October, pp. 690, 691.) We are afraid we are not doing
our part in the assurance when petitioner is denied the equal protection of the laws, and is not
released even on bail, a condition he is willing to fulfill, although not required under the Constitution.

Those of us believed in the great principles of freedom as indispensable element of human

happiness, pinned their hopes for a better world on the victory of the forces of light, the standard
bearer of the democracy, the champions of individual and collective liberties. The final victory was,
conclusively won on September 2, 1945. The meaning and the validity of those principles are now
under the test in the present case. The test is taking place not less than in the highest tribunal of one
of the proud nations which contributed to victory with the heroism, gallantry and martyrdom of
uncounted thousand of her sons and daughters. Bataan become a new symbol of liberty which fired
the imagination, not only of millions of Filipinos, as Balintawak did half a century ago, not only of our
blood relatives such an Indonesian and other Malayan people scattered in the Indian and Pacific
Oceans, but of hundreds of millions of liberty-loving souls all over the world. If few cowards and
mercenaries humbled themselves to lick the boots of the insolent enemy, in temporary ascendancy,
to advance with the betrayal their personal fortunes, in numerable rivals of Bonifacio and Luna, of
Jacinto and Del Pilar, filed with their unsung gestes mountains and valleys, keeping in wonder
comrades in arms abroad, and, headed by Chief Justice Abad Santos, many thousands of Filipino
Martyrs faced death with the divine serenity of those who have faith in the Ideal. Are our hopes to
shrivel and fade sooner than the tender petals of a beautiful orchid? Is our unbounded faith in the
blissful promises of liberty to be shaken so soon by disappointment? Are the principles for which we
fought with other democracies like multi-colored butterflies, flying beauties while out of our reach and
dirty shreds of dead matter in the hands of a boy? Are they just deceitful dreams, mirages and
illusions?

It is the duty of all us to keep burning the torch of liberty, collective and individual. The role of
leadership our people assumed in the fight for democracy in this region of the globe has placed on
our shoulders the burden of a great national and international responsibility. The whole world is
watching today the gallant fight for independence of Nesiots, our brethren of Java who have followed
with envious eyes our unremitting fight for the same ideal, initiated in the latter part of the last
century, and our gigantic strides towards the full attainment of our national aspirations. But, besides
national dignity, the real content of independence are the civil liberties of the individual persons. At
the bottom of the national freedom are the individual freedoms. We blazed the trial of oriental
freedoms. After us, under the perspicacious leadership of Gandhi, India has been fighting for its
liberation for three decades. Now our kinsmen in Java challenge boldly Dutch imperialism. We hope
that eventually all the Malayan race shall be freed from bondage and shall regain its position of
dignity among the other races. For God's sake, let us not recede nor retrace the steps already taken
to make personal freedom, which is the basis of all freedoms, bloom in the glory of reality and ripen
with the fullness of its magnificent meaning.

X. CONCLUSIONS

Our conclusions are:

1. Petitioner is actually deprived of liberty without due process of law, in flagrant violation of the Bill
of Rights of the Philippine Constitution, no charges having been filed against him for any offense.

2. His detention is not authorized by any government office or officer with legal power to order it.

3. Petitioner is, therefore, entitled as a matter of absolute constitutional right to immediate

unconditional release.

4. Having manifested his willingness to put bail for his release, the more reason there is for granting
his petition.

5. Under the provisions of section 19 of Commonwealth Act No. 682, the People's Court has no
discretion to deny a petition for release on bail, unless petitioner is charged with a capital offense
and the evidence of guilt is strong.

6. The People's Court cannot decide whether the evidence is strong in a case of capital offense,
unless said evidence is presented.

7. Mere statements of a prosecutor are not enough. Mere statements are not evidence according to
the Rules of Court. Statements are not to be confused with evidence.

8. Not a scintilla of evidence having been presented against the petitioner, the prosecutor refusing to
disclose any evidence, the People's Court was in duty bound to grant the petition for release on bail,
if the doctrines established by the Supreme Court in the Marcos, Baez and Samano cases, are to
be followed.
9. To construe section 19 of Commonwealth Act No. 682 as granting the People's Court full
discretion to deny a petition for release on bail is to make it unconstitutional.

10. The denial of the petition is violative of the fundamental rights guaranteed, not only by the
Constitution of the Philippines, but also by the Charter of the United Nations, which is now in full
force in this country.

EN BANC

G.R. No. L-30773 February 18, 1970

FELIXBERTO C. STA. MARIA, Petitioner, vs. SALVADOR P.

LOPEZ, THE BOARD OF REGENTS OF THE UNIVERSITY OF THE
PHILIPPINES, and NEMESIO CERALDE, Respondents.

V.E. del Rosario and Associates and Atienza, Tabora & del Rosario
for petitioner.

Office of the Solicitor General Felix V. Makasiar, Solicitor Bernardo

P. Pardo and Special Counsel Perfecto V. Fernandez for respondents
Salvador Lopez, et al.

Crispin D. Baizas for respondent Nemesio Ceralde.

SANCHEZ, J.:

Directly under attack in this an original action for certiorari,

prohibition and mandamus is the validity of the transfer of petitioner
Felixberto C. Sta.Maria from his post of Dean, College of Education,
University of the Philippines (UP), to the Office of respondent UP
President Salvador P. Lopez, there to become Special Assistant in
charge of public information and relations.

Petitioner, a professor of English and Comparative Literature

(formerly Dean of the UP College in Baguio), was elected Dean of
the College of Education on May 5, 1967 by the Board of Regents,
on nomination of the UP President. His appointment as such Dean
was for a five year term, "effective May 16, 1967 until May 17,
1972, unless sooner terminated, with all the rights and privileges as
well as the duties and obligations attached to the position in
accordance with the rules and regulations of the University and the
Constitution and laws of the Republic of the Philippines. chanrob lesvi rtualaw lib raryc han robles v irt ual law l ibra ry

The issues in this case can be better understood if framed in its

proper setting, viz:
chan robles v irt ual law l ibra ry

As far back as February 11, 1969, the graduate and undergraduate

students of the UP College of Education presented to President
Salvador P. Lopez a number of demands having a bearing on the
general academic program1 and the physical plant and
services,2with a cluster of special demands.3 In response, President
Lopez created a committee composed of eight graduate students,
two undergraduate students, and four faculty members. This
committee met 9 times with Dean Sta. Maria in February and March
1969. On March 17, 1969, Dean Sta. Maria gave President Lopez a
written summary of the dialogues he had with the committee and
enumerated in connection with the demands, the steps taken,4 the
steps being taken5 and the steps ito be taken in consultation with
the faculty.6 He also recommended to the UP President the
following: a more adequate budget responsive to the needs of the
college, taking into account its expanding graduate program;
improvement of the library service in terms of a better book
collection and more adequate space and reading rooms, particularly
for graduate students; appointment of more faculty members on the
senior level to handle the large graduate program, and to meet the
acute need for more graduate advisers, critics, and committee
members; improvement of the water system of the college;
improvement of the physical plant of the college, including its
classrooms, offices, toilets, sidewalks and surrounding landscape;
and construction of a graduate students' dormitory. chanrobles virtua lawlib rary chan roble s virtual law l ibra ry

But the students were not to be appeased. For, Dean Sta. Maria,
according to them, did not act on some of their demands.
Respondents herein have stressed that in the meetings of the
education graduate committee, Dean Sta. Maria neither included in
the agenda nor consulted the faculty about the students' demands
on "foreign language proficiency examination" and on "research and
thesis writing pressures". They have brought out the fact that many
members of the faculty shared the students' grievances on the
absence of definite standards and procedures on academic work,
including teaching load, administrative and committee assignments,
faculty evaluation, and favoritism and discrimination. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

On July 16, 1969, Adelaida E. Masuhud, President of the UP

Graduate Education Student Organization., led a group who visited
President Lopez and submitted to him a progress report on the
students' demands taken up with Sta. Maria since March 26, 1969.
She acknowledged that the dean had granted ten demands7 but
deplored the fact that the dean had ignored the following;
submission to the faculty for decision, of the demand for abolition of
foreign language requirements and comprehensive examinations;
fixing the criteria for selection, admission, appointment and
promotion of faculty members; formulation of clear-cut policies on
thesis advising, faculty teaching load, and faculty membership on
standing committees; and appointment of a permanent director for
the Graduate Education Studies of the SPED Program. She thus
stated: "I appreciate the efforts of the Dean in acting On some of
our demands. However, the Dean has failed to take further action
on the demands that have far reaching implications for the
students, faculty and the College as a whole. As a consequence
problems, confusion and demoralization of students and faculty
have cropped up anew in the college." chanrob les vi rtua l law lib rary

The students threatened to boycott their classes the next day, July
17. President Lopez asked that they desist, suggested that they
instead attend a student-faculty meeting the next day in his
office.
chanro blesvi rtua lawlib rary chan roble s virtual law lib rary

But on July 17, the Education Graduate Student Organization

boycotted their classes just the same. The President met the
striking students' representatives and the faculty members of the
College of Education. Charges of favoritism were allegedly hurled by
some of the faculty members against Sta. Maria. On the other hand,
the dean offered to sit down with the students.The latter, however,
refused to enter into a dialogue unless he (the dean) were first
ousted.chanroble svi rtualaw lib raryc hanrobles vi rt ual law li bra ry

In a separate development, the faculty members of the College of

Education convened in the afternoon of July 22. They resolved,
amongst others, to recognize the right of a college dean to his
position from which he cannot be removed unless for cause (44 in
favor, 2 abstained), and not to endorse the students' demand for
the forced resignation of Sta. Maria (36 in favor, 5 against, 3
abstained). chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

The boycott fever infected other colleges. On July 22, 1969, the
newly installed members of the UP Student Council voted to support
the education students' strike. The next day, July 23, the main
avenues leading to the university gates were barricaded, buses
denied entrance, and students cajoled into joining the strike. It was
thus on that day that all academic activity in the university came to
a complete stand still. In the morning of July 23, at 10:00 o'clock,
the UP President called a meeting of the faculty of the College of
Education. Those present gave him a vote of confidence (40 in
favor, 7 abstained) to resolve the issue on hand as he sees fit. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

Armed with the vote of confidence of the education faculty, on the

same day, July 23, 1969, President Lopez issued the transfer order
herein challenged, Administrative Order 77. That order, addressed
to Dean Sta. Maria, reads:

By special authority vested in me by the Board of Regents and

pursuant to the Civil Service Law and the University Code, you are
hereby transferred from the College of Education to the Office of the
President as Special Assistant8 with the rank of Dean, without
reduction in salary, in the interest of the service. chanroblesv irtualawli bra rycha nrob les vi rtua l law lib rary

This transfer involves your administrative position only and in no

way affects your status as professor of the University. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary

This order shall take effect immediately.

Simultaneously, President Lopez appointed ad interim Professor
Nemesio R. Ceralde as "acting Dean of the College of Education,
without additional compensation, effective July 23, 1969". chanroblesv irtualawli bra rycha nrob les vi rtua l law lib rary

President Lopez was to explain in a press statement of July 23,

1969 that he "cannot permit the continued disruption of the
academic life of the institution"; that the transfer order was made
"[i]n the interest of the service" and "as an emergency measure"
because the meetings with the faculty, students, Sta. Maria and the
UP President had "proved fruitless in the face ofthe refusal of the
College of Education students to discuss any further their demands
unless and until Dean Sta. Maria resigns his position"; and that,
therefore, "the complete shut-down of classes in the Diliman
campus has compelled" him to "transfer Dean Sta. Maria to other
duties".chanroblesvi rtua lawlib rary chan roble s virtual law l ibra ry

Having received the transfer order on the same day, July 23, Sta.
Maria forthwith wrote a letter, which he himself hand carried to
President Lopez, requesting that "(a) a formal investigation be
conducted by the Board of Regents on the circumstances which led
to the promulgation of the above order, and on the basis thereof;
and (b) said order be reconsidered and set aside forbeing manifestly
unjust, unfair, unconstitutional, and contrary to law, and, therefore,
null and void." chanrob les vi rtual law lib rary

The next day, July 24, Sta. Maria announced to the education
students and faculty, through Memorandum 17, that the transfer
order "is now the subject of a pending request for reconsideration
... and, for this reason, its effectivity is necessarily suspended", and
that he shall continue "to be the Dean ... pursuant to his
appointment as such for the period from January 1, 1968 to May
15, 1972." chanroble s virt ual law l ibra ry

On July 25, 1969, the education faculty signed a "Declaration of

Concern" stating, amongst others, that when they gave President
Lopez a vote of confidence, they "did so in the belief and confidence
that he ... will uphold the democratic processes in the solution of
the problem and will respect the fundamental rights of the
individual." Similar declarations of concern came from the faculties
of law, medicine, arts and sciences, and nursing. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary
At President Lopez' request, a special meeting of the Board of
Regents was held on July 25, 1969. President Lopez there reported
Dean Sta. Maria's transfer and Professor Ceralde's ad
interim appointment as Acting Dean of the College of Education. He
told the board that because of "failure of leadership in the College of
Education, a crisis of confidence emerged in that institution"; that
the ultimate result was the boycott of classes by the students
"starting on July 17, 1969 in protest against the inaction of Dean
Sta. Maria on their demands submitted months ago"; and that this
situation impelled him to issue Administrative Order 77 "as
demanded by the prevailing crisis." ch anroble s virtual law l ib rary

The board confirmed Dean Sta. Maria's transfer and Professor

Ceralde's appointment, considered as premature Sta. Maria's
Memorandum 17 heretofore mentioned, but gave due course to his
plea for reconsideration and granted him a chance to be heard at
the next board meeting on July 29, 1969. chanroblesvi rtua lawlib raryc han robles v irt ual law l ibra ry

In the said meeting of July 29, Sta. Maria did not personally appear.
He sent his counsel who manifested that Sta. Maria was not
recognizing the board's jurisdiction unless, without further hearing,
the board first revoke the transfer order. The board resolved: "... to
take cognizance and consider as a new petition of Dean Sta. Maria,
submitted through counsel, his declaration that the efficacy of the
President's Administrative Order No. 77 transferring him should first
be suspended by the Board and held in abeyance as a prerequisite f
or the hearing being prayed for. In this connection, Dean Sta. Maria
will be asked to file a Memorandum with the Board in support of his
new petition."chanroble s virtual l aw lib rary

The foregoing had been the developments when Sta. Maria filed the
present petition for certiorari, prohibition and mandamus in this
Court on July 31, 1969 against respondents Salvador P. Lopez, the
Board of Regents and Nemesio R. Ceralde. chan rob lesvi rtualaw lib raryc han robles v irt ual law li bra ry

The case is now ripe for decision. chanroblesvi rtua lawlib raryc han roble s virt ual law li bra ry

1. Discussion of the issues herein involved necessarily has to start

with the examination of the terms of employment, the covenant
which binds petitioner with the university. The contract, it bears
repeating, stipulates that the dean's five-year term is qualified by
the clause: "unless sooner terminated, with all the rights and
privileges as well as the duties and obligations attached to the
position in accordance with the rules and regulations of the
University and the Constitution and laws of the Republic of the
Philippines." The authority for this appointment is found in Article 79
of the university code providing that "[t]he term of office of all
deans ... shall be five years from the date of their appointment
without prejudice to reappointment and until their successors shall
have been appointed. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

We first look into the meaning of the phrase "unless sooner

terminated" embodied in the contract of employment. Right at the
start, it would seem to us that the term "unless sooner terminated"
cannot be equated or tied up with some such terms as "terminable
at will", or "removable at pleasure". chanrob lesvi rtualaw lib raryc han robles v irt ual law l ibra ry

A number of reasons there are why petitioner may not be removed

at pleasure before the expiry of his term. First. Petitioner's contract
of employment has a fixed term of five years. It is not an
appointment in an acting capacity.9 Nor is petitioner's designation
that of an officer-in-charge as it is known in administrative
practice. Second. Nothing in the rules and regulations of the
university or its charter would indicate that a college dean
appointed with a term can be separated without cause. On the
contrary, reason there is to be believe that the university policy
points quite to the contrary. An instance is the resolution of the
Board of Regents of June 14, 1961, fixing the term of office of the
UP President. It was there stated that "uncertainty of tenure and
frequency of change in the incumbent of the position are not for the
best interests of the University." This concept is self-evident. Third.
Again, there is nothing either in the UP charter or code empowering
the UP President or the Board of Regents to insert such a clause -
unless sooner
terminated - as would authorize dismissal at will. Fourth. As this
Court, in Lacson vs. Roque, 92 Phil. 456, 463, ruled, "strict
construction of law relating to suspension and removal, is the
universal rule." Petitioner, with a definite term of employment, may
not thus be removed except for cause. The reasons being that the
removal was not expressly declared to be exercisable at pleasure or
at will; and that the fixity of the term of office gives rise to the
inference that he may be removed from office only for misbehavior
as to which he shall be entitled to notice and hearing. As was well
pointed out in Lacson vs. Roque, "[a]n inferential authority to
remove at pleasure can not be deduced, since the existence of a
defined term, ipso facto negatives such an inference and implies a
contrary presumption, i.e., that the incumbent shall hold office to
the end of his term subject to removal for cause." 10 chan roble s virtual law l ibra ry

The foregoing paves the way for the consideration of what we

believe is the overriding question: Was Sta. Maria removed? chanrobles vi rtua l law lib rary

2. Respondents stand on the premise that Sta. Maria was not

removed; he was just temporarily assigned to another position. chanroblesv irt ualawli bra rycha nrob les vi rtual law lib rary

We may well start with the statement that a dean of a UP college

holds a non-competitive or unclassified civil service position. 11 As
such, and upon the provisions of his contract of employment, he is
protected by constitutional and statutory provisions on security of
term. 12 He cannot be removed during the term except for cause
and after prior hearing and investigation. 13 Which requisites are
also embodied in the university charter 14 and in the university
code." 15chanrob les vi rtua l law lib ra ry

But is there really need for a formal prior hearing? No need,

respondents say. For, the Civil Service Law requires prior hearing
only in cases of removal, dismissal or suspension. Sta. Maria,
respondents underscore, was not suspended, dismissed or
removed; he was merely transferred to another position without
reduction in salary or rank in the interest of public
service. 16 Respondents proceed to aver that the transfer was
neither disciplinary nor punitive. 17 A promotion, so they claim,
because in the new position he would be an officer of the university
not just of one college; 18 he would enjoy a rank at par with senior
college deans; 19 and that he would be in line for one of the vice-
presidencies of the university. 20 Respondents also say that such
transfer was an emergency measure to stave off a crisis that
gripped the campus - the paralyzing disruption of classes. 21 They
emphasize that there was an urgent and genuine need for
petitioner's talents and services in the newly created Public Affairs
and University Relations Office. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

Quite interesting it is to inquire whether Dean Sta. Maria was

transferred, promoted, demoted, or removed without his
consent.chanroblesv irtualawl ibra rycha nrob les vi rtua l law lib rary

3. A transfer is a "movement from one position to another which is

of equivalent rank, level or salary, without break in
service." 22 Promotion is the "advancement from one position to
another with an increase in duties and responsibilities as authorized
by law, and usually accompanied by an increase in salary." 23 chanroble s virtual law l ib rary

A transfer that results in promotion or demotion, advancement or

reduction 24 or a transfer that aims to "lure the employee away
from his permanent position", cannot be done without the
employee's consent. 25 For that would constitute removal from
office. Indeed, no permanent unless the officer or employee is
transfer can take place unless the officer of the employee is first
removed from the position held, and then appointed to another
position. 26 chanrob les vi rtua l law lib rary

When an officer is reduced in rank or grade and suffers a big cut in

pay, he is demoted; 27and when he is demoted, he is removed from
office. 28 But a demotion means something more than a reduction in
salary: there may be a demotion in the type of position though the
salary may remain the same. 29 A transfer that aims by indirect
method to terminate services or to force resignation also is
removal. 30 chanro bles vi rtua l law li bra ry

4. Concededly transfers there are which do not amount to removal.

Some such transfers can be effected without the need for charges
being preferred, without trial or hearing, and even without the
consent of the employee. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

The clue to such transfers may be found in the "nature of the

appointment." 31 Where the appointment does not indicate a
specific station, an employee may be transferred or reassigned
provided the transfer affects no substantial change in title, rank and
salary. Thus, one who is appointed "principal in the Bureau of Public
Schools" and is designated to head a pilot school may be
transferred to the post of principal of another school. 32 chan robles v irt ual law l ibra ry

And the rule that outlaws unconsented transfers as anathema to

security of tenure applies only to an officer who is appointed - not
merely assigned - to a particular station. 33 Such a rule does not
prescribe a transfer carried out under a specific statute that
empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the
agency. 34 The use of approved techniques or methods in personnel
management to harness the abilities of employees to promote
optimum public service cannot be objected to. 35 Neither does
illegality attach to the transfer or reassignment of an officer pending
the determination of an administrative Charge against him; 36 or to
the transfer of an employee from his assigned station to the main
office, effected in good faith and in the interest of the service
pursuant to Section 82 of the Civil Service Act. 37 chanrob les vi rtual law lib rary

5. The next point of inquiry is whether or not Administrative Order

77 would stand the test of validity vis-a-vis the principles just
enunciated. chanroblesv irt ualawli bra rycha nrob les vi rtual law lib rary

That the university is vested with corporate powers exercised by the

board of regents and the President is a proposition which is not
open to question. 38 The board, upon recommendation of the
President, is clothed with authority to hire and fire after
investigation and hearing. 39 The President, on the other hand, may
fill vacancies temporarily, 40 transfer faculty members 41 from one
department to another, 42 and make arrangements to meet
emergencies occurring between board meetings so that the work of
the university may not suffer. 43 chanrob les vi rtual law lib rary

To be stressed at this point, however, is that the appointment of

Sta. Maria is that of "Dean, College of Education, University of the
Philippines." He is not merely a dean "in the university". His
appointment is to a specific position; and, more importantly, to a
specific station. chanroblesvi rt ualawlib ra rychan ro bles virtual law lib rary

A line of distinction must be drawn between the office of dean and

that of professor, say, of English and Comparative Literature. A
professor in the latter capacity may be assigned to handle classes
from one college to another or to any other unit in the university
where English is offered. He may even be transferred from graduate
school to undergraduate classes. He cannot complain if such was
done without his consent. He has no fixed station. 44 As for him, it
can always be argued that the interests of the service are
paramount. chanroblesvi rtua lawlib rary chan robles v irt ual law l ibra ry

But a college dean holding an appointment with a fixed term stands

on a different plane. He cannot, without his consent, be transferred
before the end of his term. He cannot be asked to give up his post.
Nor may he be appointed as dean of another college. Much less can
he be transferred to another position even if it be dignified with a
dean's rank. 45 chanrob les vi rtua l law lib rary

6. We now come to the problem of whether or not petitioners

transfer from the College of Education to the Office of the President
as special assistant with the rank of dean without reduction in salary
was permanent. Facts there are which would show that far from
being a temporary measure, petitioner's transfer was in fact a
removal. chanrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry

Respondent university president himself admitted that the transfer

order was an ad interimappointment. That the transfer was a
removal has been confirmed by the UP President's reference to Sta.
Maria's deanship of the College of Education as his "former
position". This plainly indicates that Sta. Maria ceased to be dean of
the college. Thus:

The validity of Dean Sta. Maria's designation or appointment as

Special Assistant to the President rests upon two acts: chanrob les vi rtua l law lib rary

(a) The transfer order of July 23, 1969, which operates as an ad

interim appointment under Art. 44(e) of the Revised U.P. Code;
andchanrobles vi rtua l law lib ra ry

(b) The confirmation on such appointment by the Board of Regents

in its special meeting on July 25, 1969. 46

And again:
The position of Special Assistant to the President with the rank of
Dean carries equal, if not higher, rank than the position of Dean of
the College of Education. As Special Assistant to the President, Dean
Sta. Maria has become an officer of the University while in
his former position, he was merely an officer of the college in the
University. 47 chanrob les vi rtual law lib rary

Not that the foregoing stand alone. The reasons advanced by

respondents to justify such transfer are quite revealing. They
pictured Sta. Maria as a bungling administrator, incompetent,
inefficient, unworthy, a miscast. They averred that he did not act on
the petitions and grievances of graduate students; that he caused
widespread dissatisfaction amongst faculty members and students
because of his "inaction", his "lack of sincerity and candor in
dealing" with them, that he was guilty of "inflexible arrogant
attitude and actuation" as dean; that he miserably failed to avert a
boycott that was caused by a "crisis of confidence" and "failure of
leadership" in his college; that he abandoned his post when he was
most needed; that he refused to accept solutions even as he failed
to advance his own to mitigate the crisis; that in sum, he was a
miscast in the College of Education. 48 Of course, these are merely
charges. But they collectively reflect the thinking of respondents
toward petitioner. In the picture thus presented, it would not be
unreasonable to say that Sta. Maria's transfer was with the
character of permanence to take him away from his duties and
responsibilities as dean, in all of which allegedly he was a failure.
law libra ry
chanro blesvi rt ualawlib ra rychan roble s virtual

And if more were needed to show that the transfer of Sta. Maria
was permanent, there is the fact that Nemesio Ceralde was
appointed "ad interim" acting dean of the College of Education. And,
Ceralde's appointment was confirmed by the Board of Regents on
July 25, 1969. Again, there is respondent's averment that
petitioner's new position as special assistant to the President could
be a stepping-stone to a higher position - that of Vice Presidency of
the university. Were his appointment but temporary, there would be
no occasion to say that he could be elevated to another position of a
higher category. chanroble svirtualawl ib raryc han robles vi rt ual law li bra ry
More than this, the transfer was a demotion. A demotion,
because: First, Deanship in a university, being an academic position
which requires learning, ability and scholarship, is more exalted
than that of a special assistant who merely assists the President, as
the title indicates. The special assistant does not make authoritative
decisions. Second. The position of dean is a line position where the
holder makes authoritative decisions in his own name and
responsibility. A special assistant does not rise above the level of
staff position. Third. The position of dean is created by law, the
university charter, and cannot be abolished even by the Board of
Regents. That of special assistant, upon the other hand, is not so
provided by law; it was a creation of the university president. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary

It will not avail respondents any to say that Sta. Maria retained "the
rank of Dean". In actual administrative practice, the terms "with
rank of" dean is meaningless. He is no dean at all. He of course,
basks, in the trappings of the dean. A palliative it could have been
intended to be. But actually he is a dean without a college. c han roblesv irt ualawli bra rycha nrob les vi rtua l law lib rary

7. Respondents nonetheless insist that the "interest of the service"

is the primary reason for the transfer. They say that there was an
urgent need to bring the academic life of the university back to
normal and Sta. Maria's transfer was the only feasible solution. They
point to the need for petitioner's services in the Office of Public
Affairs and University Relations purportedly "to improve the
relations of the University with its various constituencies." They
cling to the principle of "least sacrifice. 49 They urge that only three
options were left to the university, namely: to keep Sta. Maria at all
costs and risk an indefinite paralysis of the university life; to give
due course to the charges filed against Sta. Maria, preventively
suspend him during the investigation, and after hearing dismiss him
if the evidence so warrants; and to transfer him as a non-
disciplinary measure in the interest of the service. Respondents
claim that the first option was out of the question. The reason they
give is that the university could not afford an indefinite disruption of
academic life. To respondents, the second was feasible but
distasteful - the administration was in no mood to prejudice Sta.
Maria through a proceeding that would reflect on his record. So the
university administration opted for the third method, a solution said
to be the most convenient and expeditious and based on the
principle of "least sacrifice". chanro blesvi rt ualawlib ra rychan roble s virtual law lib rary

Implicit in the university's stand is that Dean Sta. Maria had to be

uprooted from his position as a price to buy the peace of the
students and induce them to return to their classes. Such could
have been an easy way to climb out of difficulties. But transfer
could be but a ploy to cover dismissal. And dismissal cannot be
justified on grounds of expediency. Appropriately to be remembered
here is that due process is associated with the sporting idea of fair
play; 50 it shuns oppression and eschews unfair dealing; it obeys
the dictates of justice and is ruled by reason. The Scriptures no less
remind us to hear before we condemn. 51 Fidelity to this cardinal
principle must have impelled Congress, just recently, to clarify the
authority to transfer subordinate officers and employees, an
authority so often misused and abused to ride roughshod over
hapless civil servants. As amended, the Civil Service Law provides
that "if the employee believes that there is no justification for the
transfer, he may appeal his case ... and pending his appeal and
decision thereon, his transfer shall be held in abeyance." This was
intended to fortify the protective wall built around the employee's
right to security of tenure, to guard against unbridled
encroachments masquerading in the "interest of the service". And,
to think that this amendment came just a few days after Sta. Maria
was transferred without prior hearing. chanroble svirtualawl ibra rycha nrob les vi rtua l law lib rary

The current climate of activism of the young people, recognized to

be worldwide, whether on or off campus, is a phenomenon in this
country that commands attention. Demonstrations and boycotts
which are manifestations of such activism are constitutionally
protected. But there are limits. A fundamental precondition to the
exercise of such rights, we perceive, is that the activity should not
impair the rights of others whose roots are as deep and as equally
protected by iron-clad guarantees. A high regard to a man's dignity
is the hallmark of our law.
chanroblesv irt ualawli bra rycha nrob les vi rtual law lib rary

The students demanded Sta. Maria's ouster. The President of the

university acceded to their demand. But Sta. Maria's right to be
removed only, in the words of the law, "after due process" was
disregarded. That Sta. Maria's right alone was impaired is not
justification for the action taken against him. Unless, of course,
justice be-replaced by collective action as the test for validity. And,
unless we admit that arbitrariness is permissible if it comes from an
impersonal multitude. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

Nor may it be assumed that emergency could justify disregard of

constitutional rights. It would seem pertinent to observe that a
fundamental charter is for all times and for all conditions. Eloquent
are these passages from the declaration of concern from the College
of Law faculty:

We, the faculty of the College of Law, University of the Philippines,

view with the utmost concern the removal of Felixberto Sta. Maria
from his position as Dean of the College of Education by the
President of the University of the Philippines. chanrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry

As members of the academic community that is the University, as

members of the Philippine Bar, and as citizens of our Republic, we
speak out in protest against this violation of the Rule of Law in our
midst and the clear disregard of the fundamental rights of one of
our colleagues.chanroblesv irtualawli bra rycha nrob les v irtua l law lib ra ry

A member of the faculty of the University of the Philippines,

pleading for his day in court, asking to be heard in his defense,
desirous to confront his accusers, and appealing for a hearing by a
disinterested body, has been summarily condemned without trial.
He has been punished without evidence formally presented. He has
been stripped of his powers and prerogatives as Dean, in violation
of that most basic and fundamental right - that no person shall be
deprived of his life, liberty or property without due process of law
and in accordance with the regularly established procedures. chanroblesvi rtualaw lib raryc han robles v irt ual law li bra ry

Our concern has nothing to do with the merits of the case against
Felixberto Sta. Maria. We protest the procedure that was followed in
disregard of due process. Under a legal system like ours, there are
established procedures to settle disputes. The arbitrary rule of one
or the mob rule of the many are alien to our free institutions. Under
existing university rules and practice, charges against students, no
matter how minor, are formally investigated. Why should a dean be
entitled to less? chanrobles vi rt ual law li bra ry

We are aware that the action against Dean Sta. Maria was
denominated a transfer to other duties in the University without
reduction in rank or salary. This thin veneer of legalism, this
transparent attempt to follow the letter but not the spirit of the
Constitution, the University Charter, the U.P. Revised Code, the Civil
Service Law, and the Civil Service Rules and Regulations deceives
no one. Who can, in good conscience, honestly say that Dean Sta.
Maria has not been reduced in rank, privileges and prerogatives?
Who can discount his moral anguish and suffering? chanrobles vi rtua l law lib rary

The vote of confidence given by the faculty of the College of

Education notwithstanding, the President of the University remains
bound by and can act only in consonance with, the Rule of Law. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

We agree with the President that there should be no disruption of

the academic life of the community. Like him, we want peace, but
not at any price. Peace secured at the expense of Constitutional
principles is no peace at all; and the peace just now obtained is no
more than a transitory lull, a precarious interlude that could lead to
even more serious disorders and disregard of fundamental rights.
virtua l law lib rary
chanroblesv irt ualawli bra rycha nrob les

We also regard with alarm this action against Dean Sta. Maria
because of its consequences on the morale of the faculty. The
exercise of independent judgment in the performance of academic
responsibilities is imperilled where the force of numbers can replace
the rational solution to a controversy. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary

Believing that the action taken against Dean Sta. Maria is not
irreversible, we submit to the President of the University this
declaration of concern, urging him to reconsider his action. 52 chanroble s virtual law lib rary

8. The argument that the transfer of Sta. Maria was made in the
interest of public service has dwindled in strength on the face of the
circumstances. Of course, the university is under compulsion to
bring normalcy to the campus, to end the boycott of classes. The
decision to transfer could really refract the temper of the times. We
do say, however, that emotion or muscle need not displace
reason.chanroblesvi rtua lawlib rary chan robles v irt ual law l ibra ry

Nor do we believe it too difficult for the authorities to hew to the

line drawn by the due process clause, to cause charges to be
formalized, Sta. Maria suspended, and given a fair chance to defend
himself. This procedure does not necessarily bring about
humiliation. On the contrary, it exudes the spirit of fairness. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary

The baneful effects of Sta. Maria's transfer were easily and promptly
felt. The professors in different faculties were alarmed. Obviously
they felt that to compel a professor to give up his constitutional
right is beyond tolerance. A declaration of concern was expressed
not only by the faculty of the College of Law as aforesaid but also
the Colleges of Education, Arts and Sciences, Medicine and PGH
School of Nursing, all of the UP. chanroblesvi rt ualawlib ra rychan rob les vi rtual law li brary

More than these, such transfer undermined the integrity of UP. The
university buckled under strain, yielded where it should have upheld
its commitment to the rule of law. Peace may not be secured at the
expense of consecrate constitutional principles. A contrary rule
could lead to more serious disorders. chanrob lesvi rtualaw lib raryc han robles v irt ual law l ibra ry

9. Respondents urge that "the traditional concepts and

requirements of due press could not be made to apply to every kind
of administrative action, without the consequent inefficiency and
frustration of legislative purpose." They argue that certain types of
administrative action may be taken without prior hearing and still
satisfy the requirements of due process. The existence of a public
emergency, they insist, would suffice to justify summary action. To
prop up their stand, respondents cite such summary administrative
actions as distraint of a delinquent taxpayer's
property; 53 abatement of a nuisance per sep; 54 cancellation of a
passport of one who absconds to another country to evade criminal
prosecution. 55 chanrob les vi rtua l law lib rary

No question that a summary administrative action is appropriate in

the cases cited. Examples can be multiplied. Thus, without providing
for a prior hearing, a bank conservator may seize a distressed
bank; 56 the Food and Drug Administrator may confiscate harmful
drugs whose labels are allegedly misleading; 57 the Civil Aeronautics
Board may suspend a letter of registration; 58 and the Securities
and Exchange Commission may suspend the license of a securities
dealer to deal in small offerings. 59 In all these cases, the courts
have uniformly ruled that due process does not require judicial
inquiry as a condition to the exercise of administrative discretion. "It
is sufficient, where only property rights are concerned, that there is
at some stage an opportunity for a hearing and a judicial
determination." 60 chan roble s virtual law l ibra ry

We can go on citing cases where regulatory agencies, in a manner

of speaking, shoot first before asking questions without offending
against due process. But it is pointless to cite them here, much less
rely upon them to support Sta. Maria's unconsented transfer. For
central to those cases is that they involve the exercise of regulatory
authority pursuant to a delegated police power. The reason these
agencies are given such summary powers is that they come to grip
with issues that are mostly scientific and technical, issues that are
"perhaps not readily reducible to the simple question-and-answer
method so dearly beloved by lawyers." 61 Hence, in place of formal
hearing they resort to inspection, examination and testing -
techniques regarded as sufficient substitutes upon which to base an
administrative action. 62 Whether poultry is putrid, or drug is
harmful, or a ship is unseaworthy, are matters better left to
scientific analysis or technical inspection without the need of a
formal hearing. Based on such examination and inspection,
summary orders for condemnation or confiscation may follow. chanrob lesvi rtua lawlib raryc han robles v irt ual law l ibra ry

But the UP President's decision to summarily take the deanship

away from Sta. Maria cannot, by any stretch of imagination, be cast
in the same type of administrative actions that regulatory agencies
exercise under a delegated police power. The UP President's action
here is unlike that, for instance, of the Central Bank in removing the
officers of a floundering bank in order to take over its
management. 63 Not even the so-called emergency situation in the
campus could be invoked to firm up his summary action. Seemingly,
the decision to transfer Sta. Maria was dictated by the howling
protest of demonstrating students who wanted to muscle in their
demands for curriculum changes. But precisely, it is in situations
such as this that one should be on guard lest reason and justice be
overwhelmed by excitement and passion. chanroblesv irt ualawli bra rycha nrob les vi rtua l law lib rary

10. Again, respondents cite the so called "crisis of confidence" and

"failure of leadership" in the College of Education. Allegedly, these
factors caused the student boycott which UP tried to avert by the
expedient of banishing Sta. Maria from, and effectively depriving
him of his deanship, of the College of Education. chanroblesvi rtua lawlib rary chan robles v irt ual law l ibra ry

The boycott, we are made to understand, was called because Sta.

Maria resisted the pressures exerted by the graduate students. He
refused to give in to their demands demands that sought to
eliminate or influence the direction of curricular requirements,
specifically those which pertain to foreign languages and
comprehensive examinations. The graduate students, it is alleged,
considered these requirements as "obsolete vestiges of colonial
education, ... activities which do not in any way add to the learning
activity of the student." 64
chanroble s virtual law lib rary

Of course, students are entitled to petition school administrators for

change in curriculum, faculty, and school regulations. 65 Elders
should listen to what they say, and respond to their plea for
university instructions that have relevance in their education. 66 chanroble s virt ual law l ibra ry

This is a fast changing age of ferment and activism. Every day new
discoveries change man's life, morals, and attitude. The university
therefore cannot remain aloof to the contemporary
scene. 67 Perhaps the Wilsonian description of the ideal University
as a place where "calm science" sits "not knowing that the world
passes", a place where past and present are discussed "with
knowledge and without passion", a place "slow to take excitement"
and unlike the world outside "in its self-possession ..." 68 would now
appear to be anachronistic. chanrob lesvi rtualaw lib raryc han robles v irt ual law l ibra ry

The students are "probably right in much of what they say, however
wrong their prescriptions for righting matters." 69 When they protest
whether against the college administration or against the
Establishment, they should be accorded the full scope of the
constitutional protection to free speech and assembly. 70 On the
other hand, any decision or action to give in to their demands
must not be dictated solely by their "readiness ... to shout down
and in other ways to stifle the free expression of opinion of those
with whom they disagree." 71 Otherwise, the probability exists that
a minority group of students may succeed in their attempt to
impose, by disruptive action, their views or their will on the
majority. What indeed is deplorable is "when we are confronted only
with violence for violences sake, and with attempts to frighten or
intimidate an administration into doing things for which it can itself
see neither the rationale nor the electoral mandate; when we are
offered, as the only argument for change, the fact that a number of
people are themselves very angry and excited; and when we are
presented with a violent objection to what exists, unaccompanied by
any constructive concept of what, ideally, ought to exist in its
place." 72
chanro bles vi rt ual law li bra ry

Compelling is the need to adhere to the traditional democratic

processes and procedures to secure action and redress. Decisions
that are prodded by ultimatums and tantrums are generally
regarded with apprehension. chanroble svi rtualawl ib raryc hanrobles vi rt ual law li bra ry

It was in the face of student revolt that the university officials

buckled under and gave in to the students' protest against the
continued presence of Dean Sta. Maria in the College of
Education. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

11. And yet, a close look into the so-called unfulfilled demands -
abolition of foreign language and comprehensive examination -
would reveal that. Dean Sta. Maria could not have unilaterally
granted them. chanroblesvi rtua lawlib rary chan roble s virtual law l i brary

On the foreign language requirement, the students manifested that

it is -

... absurd and obsolete. Foreign students fulfill this requirement by

an examination in their language. Many of us take Spanish for the
sake of completing the requirements. We understand that these
requirements in other universities equip the students for his
research. So if a student is doing research on Spanish laws
governing the educational system and would need to use Spanish,
therefore he has to have a reading knowledge of Spanish. Such is
not the case with us. We demand that this requirement be abolished
in the graduate's level. 73 chan roble s vi rtual law lib rary

On the comprehensive examination requirements, the students say:

... The present practice is by subject, excluding the cognates.

Graduate students believe that they are taking another final
examination in a subject they have already passed. We question the
absence of policy as to who should give comprehensive
examination. We demand that the College consider the use of
qualifying examination aside from the Dean's proposed admissions
test. 74
chanroble s virtual law lib rary

These requirements, we believe, are aimed at the development of

the student's depth of insight and breadth of view. This, after all, is
an end that a university education strives to attain. Foreign
languages, should be conceded, widen a man's world. Spanish, in
particular, is one of the links to our past. We can but surmise that
Dean Sta. Maria had cogent reasons to sidetrack the demands. It is
within the realm of probabilities that the dean wanted to preserve
the high standards of professional scholarship in the college.
Perhaps he was loathe to turn his college into a factory for half-
baked graduates. The University of the Philippines, we must
remember, has set a standard and established a tradition for
learning and leadership. chanrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry

Consider, too, the fact that the education students are the future
mentors of the youth. Necessarily, they are expected to come
through college with as thorough and extensive preparation as
possible if they are to serve as educational leaders and models for
scholarship. chanro blesvi rt ualawlib ra rychan roble s virtual law lib rary

On top of all, Dean Sta. Maria cannot single-handy do away with

these requirements. The responsibility for fixing the academic
requisites for graduation and the receiving of a degree is lodged not
in the dean but in the university council, composed of the President
of the university and all faculty members from assistant professor to
full professor. 75 The Dean may only recommend proposals affecting
courses of study." 76 chan robles v irt ual law l ibra ry
But Dean Sta. Maria had not been remiss in his duties. Truth to tell,
the students admit that Dean Sta. Maria was not after all
unreasonably inflexible, intransigent He sympathetically listened to
them, and broadly satisfied those demands that were within his
power as Dean to give, short of compromising the academic
standards of the university. indeed, the President of the Education
Graduate Student Organization appreciated the Dean's efforts to
meet some of our demands". But Dean Sta. Maria could go no
further. He went along with the students as far as the limits of his
power and discretion would allow him to go. Only the University
Council and the Board of Regents could recast the academic
requirements in the way the students wanted them to be. If so, why
did they not act on the issue to avert the crisis? But perhaps the
university administration would not want to risk the downgrading of
the university's academic standards. chanrob lesvi rtualaw lib raryc han robles v irt ual law l ibra ry

The editor of the Philippine Collegian, writing the valedictory

editorial, said:

We criticized an administration which seemed to sway to the tune of

student power as a sheer force. The administration cannot act only
because of a show of might; it must have reasons for any act. And
it must make these reasons known, acting because of them without
waiting for the prodding of power. chanroblesv irt u alawlibra ryc hanro bles vi rtua l law li bra ry

No decision of the President should be forced by emergency, or

consideration of expediency. If emergency, or expediency, or the
fear of student power muscle are the only reasons for a decision,
then the decision should not be taken at all. chan roble svi rtualaw lib raryc hanrobles vi rt ual law li bra ry

On the other hand, if a decision is impending, and is going to be

taken anyway, then the decision-makers should not wait to be
forced into the decision by an emergency situation. They should
decide, and avert that situation which is so costly in terms of class
hours and the integrity of the decision. And then, in terms of the
reaction of the people involved by that dubiously-taken decision.
libra ry
chanroble svirtualawl ibra rycha nro bles vi rtua l law

Because we cannot allow it to appear that the University is being

ruled by the considerations of expediency, or by the dictates of
emergency. The University must be guided by things less base and
more basic. It must be ruled by reason, by justice, by the search for
truth. This should always be made clear, and always be respected.
The University can be neither a self-designed social instrument nor
an institution ruled by force. It is there, if anywhere, that we must
be true to reason. 77 chan robles v irt ual law l ibra ry

It is because of all the foregoing that we are left under no doubt

that petitioner Felixberto Sta. Maria is entitled to be restored to his
position as Dean of the College of Education. chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

12. Just as we are about to draw this opinion to a close, our

attention is drawn to the alleged non exhaustion of administrative
remedies. A sufficient answer would be that Dean Sta. Maria asked
that he be restored to his position pending investigation of any
charge against him. But the board refused. Instead, it confirmed
the ad interim appointment of respondent Prof. Nemesio Ceralde as
"acting Dean" in place of Sta. Maria. Virtually the door was closed.
Nothing was left for Sta. Maria to do but go to Court. 78 chan robles v irt ual law l ibra ry

Of course, Sta. Maria stood pat on his right to keep his position as
Dean. This is perfectly understandable. Hindsight now reveals that
further pursuit of administrative remedy before the Board of
Regents would be but an act of supererogation At any rate, there is
no compelling reason to resort to this remedy.79Here, the claimed
right is the constitutionally protected due process. Mandamus will
lie. 80
c hanro bles vi rtua l law lib ra ry

FOR THE REASONS GIVEN, the writ of certiorari and prohibition

prayed for is hereby granted; the transfer of petitioner Felixberto C.
Sta. Maria from his position as Dean of the College of Education,
University of the Philippines, to the position of Special Assistant to
the President, University of the Philippines, as well as the ad
interim appointment of Prof. Nemesio Ceralde "as acting Dean" of
the College of Education, University of the Philippines, are hereby
set aside and declared null and void; the writ of mandamus prayed
for is hereby granted, and the President and the Board of Regents
of the University of the Philippines are hereby ordered to restore
said petitioner Felixberto C. Sta. Maria to his position of Dean,
College of Education, University of the Philippines. chanroble svirtualawl ibra rycha nro bles vi rtua l law libra ry
No costs. So ordered.

Dizon, Zaldivar, Teehankee, JJ., concur. chanroblesvi rt ualawlib ra rychan roble s virtual law lib rary

Concepcion, C.J., Makalintal, and Reyes, J.B.L., JJ., took no part.

chanrob les vi rtual law lib rary

chanrob les vi rtual law lib rary

Separate Opinions

CASTRO, J., concurring: chanrobles v irt ual law li bra ry

As the sole question posed in this case is whether the petitioner

Felixberto C. Sta. Maria was removed from his position as Dean of
the College of Education of the University of the Philippines, I deem
it appropriate to begin this concurrence with the text of the transfer
order issued by the respondent Salvador P. Lopez on July 23, 1969:
.
chanro blesvi rt ualawlib ra rychan roble s virtual law lib rary

UNIVERSITY OF THE PHILIPPINES

Quezon City

Office of the President

July 23, 1969

ADMINISTRATIVE ORDER NO. 77 chanroble s virt ual law l ibra ry

TO: Dean Felixberto C. Sta. Maria

College of Education chanroble s virtual law lib rary

SUBJECT: TRANSFER TO THE OFFICE OF THE

PRESIDENT chanrobles vi rtua l law lib ra ry

By special authority vested in me by the Board of Regents and

pursuant to the Civil Service Law and the University Code, you are
hereby transferred from the College of Education to the Office of the
President as Special Assistant with the rank of Dean, without
reduction in salary, in the interest of the service. chanroblesv irtualawli bra rycha nrob les vi rtua l law lib rary
This transfer involves your administrative position only and in no
way affects your status as professor of the University. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary

This order shall take effect immediately.

(Sgd.) Salvador P. Lopez

President

To me the meaning of this order is unmistakable: Sta. Maria was

relieved as Dean of the U.P. College of Education and was assigned
to the Office of the President as a Special Assistant "with the rank of
Dean." That was how the action of the respondent Lopez was
understood by certain thoughtful and knowledgeable elements of
the University of the Philippines.1 Now the respondents would
minimize it as no more than a mere "temporary transfer" or, more
accurately, a detail, which does not involve removal in the
constitutional sense of the petitioner from the deanship of the
College of Education. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

I find myself hard put to give the disputed order the meaning now
ascribed to it by the respondents. In the first place, if the petitioner
was not removed as dean of the College of Education, I do not see
why it was necessary to invest him the "rank of Dean." Was he not
already a dean of a college? To say that as Special Assistant to the
University President the petitioner would have "the rank of Dean" is
to say that he was not actually a Dean, in the same way that to say
that one has the rank of a judge is to say, albeit impliedly, that one
is not a judge - else why give him the rank of an officer which he
already is?2chanroble s virtual law lib rary

In the second place, the issuance of an ad interim appointment to

the respondent Nemesio Ceralde as Acting Dean of the U.P. College
of Education underscores the fact that the petitioner had ceased to
be the dean of the college. It meant, simply, that the respondent
Ceralde was appointed dean vice the petitioner. For unless the
position of Dean of the College of Education was vacant there could
be no appointment to it. Could it be considered vacant if the
petitioner had merely been temporarily detailed to the Office of the
President of the University? chanroble s virtual law lib rary
And finally, that the petitioner was appointed to a new position and
not merely detailed thereto was confirmed by the respondent
Lopez's own counsel who, at the hearing on July 29, 1969 before
the Board of Regents of the University, admitted that the transfer
order constituted an ad interim appointment of the petitioner as
Special Assistant to the U.P. President.3 chanro bles vi rtua l law lib ra ry

There are other overriding circumstances, already pointed out in the

opinion of the Court, which completely negate the respondents'
claim that the petitioner was not removed from his post but merely
temporarily assigned to another office, but I think the best and final
refutation of the respondents' pretense is to be found in the press
statement given by the respondent Lopez himself on the same day
(July 23, 1969) he issued the transfer order. The statement reads in
part:

After long and careful consideration, I have come to the conclusion

that as President of the University I cannot permit the continued
disruption of the academic life of the institution. In the interest of
the service, therefore, and availing myself of the authority vested in
me by law, I have issued an order transferring Dean Felixberto C.
Sta. Maria of the College of Education to other duties in the
University, without reduction in rank or salary, pursuant to the Civil
Service Law and the University Code. ... chanroble svirtualawl ibra rycha nro bles vi rtua l law lib ra ry

In an effort to persuade the students to return to their classes

pending negotiation of their demands, the Administration has called
a series of meetings between the faculty, the students, Dean Sta.
Maria and the President of the University. These meetings, however,
proved fruitless in the face ,of the refusal of the College of
Education students to discuss any further their demands unless and
until Dean Sta. Maria resigns his position. ... chanroblesvi rtua lawlib rary chan roble s virtual law l ibra ry

[T]he complete shut-down of classes in the Diliman campus has

compelled me, much to my regret, to take the decision to transfer
Dean Sta. Maria to other duties. In taking this difficult decision, I
was encouraged by the vote of confidence which was unanimously
adopted by the faculty of the College of Education this morning, in
any decision which the President might take in the best interest of
the University.4chanro bles vi rtua l law lib ra ry
Again, in a press release issued the following day, July 25, 1969, he
emphasized:

I proposed to the striking students that Dean Sta. Maria be not

made to resign under pressure but that he should remain in his post
until the endof the semester. They turned this down. chanroblesvi rtualaw lib raryc han robles v irt ual law l ibra ry

In the circumstances, I decided that the only course left open to me

in order to keep the University open was to transfer Dean Sta. Maria
to other duties, in the same rank and salary, as provided by the
Civil Service Law and the University Code. chanroblesv irt ualawli bra rychan rob les vi rtual law lib rary

I deeply regret that I have had to take this difficult decision, but I
had nochoice. As President Truman once said, "The buck stops
here," and I must add, 'the U.P. is greater and more important than
any man.5 chanroble s virtual law l ib rary

These statements made right on the heels of the issuance of the

disputed order, rather than the later statements of the respondent
Lopez, reveal, I believe, the true nature of the petitioner's relief.
They demonstrate beyond cavil that the petitioner's head was the
price demanded by the striking students and that the petitioner's
head was precisely and exactly the price paid in exchange for peace
on the campus. For if the intended result of the action taken in this
case was no more than a mere "detail" of the petitioner, then it
hardly deserved the characterization as "this difficult decision"
which the U.P. President "with deep regret" had to take,
"encouraged" by the thought that he had the vote of confidence of
the colleges faculty. chanroblesvi rtua lawlib rary chan roble s virtual law lib rary

It may indeed be that the position of Special Assistant to the

President of the University is of a higher category than that of a
college dean and that for that reason the petitioner was not
demoted. But to view the matter from this angle of vision is to miss
completely the point at issue, namely, that the transfer of an
employee from one post in the civil service to another, if objected to
by him, can be justified only if there be some cause recognized by
law.chan roble svi rtualawl ib raryc hanrobles vi rt ual law li bra ry
Is not this what this Court meant when it ruled that the
unconsented transfer of a civil service employee, no matter how
well-intended, as a promotion, is "equivalent to a removal," and, if
made without prior hearing, is violativeof the Constitution?6 As this
Court noted:

But in justice to the President and the Commission on

Appointments, let it be stated once again that it would seem that
the transfer of the petitioner to Tarlac was not meant and intended
as a punishment, a disciplinary measure or demotion. It was really
a promotion, at least at the time the appointment was made. Only,
that later, due to a change in the category of Oriental Negros as a
province, the transfer was no longer a promotion in salary. And yet
the respondent and the Solicitor General insisted on the transfer
despite the refusal of the petitioner to accept his new
appointment.7 chanrob les vi rtua l law lib rary

The rule in Lacson is now embodied in statute:

[A] transfer from one position to another without reduction in rank

or salary shall not be considered disciplinary when made in the
interest of public service, in which case the employee concerned
shall be informed of the reasons therefor. If the employee believes
that there is no justification for the transfer, he may appeal his case
to the Commission on Civil Service through the Department Head.
Pending appeal and decision thereof, his transfer shall be held in
abeyance. ...8chanroble s virtual law l ibra ry

This statutory provision reflects the view that because by nature a

transfer (as distinguished from a mere detail) involves a removal
from one position and an appointment to another, there must first
be a hearing. And so, while the respondents Lopez and U.P. Board
of Regents might not be expected to follow the precise procedure
for transfer as outlined in the amendment to the statute, since this
did not take effect until August 4, 1969 (a few days after the
petitioner's relief), -they were, to my mind, nevertheless bound
toobserve those "canons of decency and fairness"9 of which the due
process clause is the "summarized constitutional guarantee of
respect." 10 And due process of law requires at the very least that
there be notice and hearing, 11 lest the summary transfer of a civil
service employee offend "a sense of justice." 12 chanroble s virtual law l ibra ry

Is to uphold the petitioner's right to a hearing to overlook the larger

interests of society, to exalt the individual at the expense of the
community? Is it, nineteenth-century bourgeois thinking, so wanting
in relevance as to be regarded as outmoded or obsolete in an age of
mass demonstrations and confrontations? chanrobles vi rtua l law lib rary

The respondent Lopez justifies his action in terms of what he

conceives to be the interest of the community that is the University
which had been completely shut down by student boycott. As he
stressed, "the U.P. is greater and more important than any man." chanroble s virtual law lib rary

But the respect due the integrity of the individual is by no means

antithetical to the interests of society. On the contrary, one
reinforces the other, , "The Children of Light and the Children of
Darkness." 13 While bourgeois democracy, with its enshrining of the
individual at the center stage of society, has now generally been
replaced by a new social consciousness, its emphasis on liberty
nevertheless contains an element of validity that transcends its
excessive individualism. 14 Perhaps it would be closer to the truth to
say that the community requires liberty as much as does the
individual and the individual requires community more than
bourgeois thought comprehended. 15 As Dr. Niebuhr explains:

The man who searches after both meaning and fulfillments beyond
the ambiguous fulfillments and frustrations of history exists in a
height of spirit which no historical process can completely contain.
This height is not irrelevant to the life of the community, because
new richness and a higher possibility of justice come to the
community from this height of awareness. But the height is
destroyed by any community which seeks prematurely to cut off this
pinnacle of individuality in the interest of the community's peace
and order. 16chanro bles vi rt ual law li bra ry

And what was the community interest involved here? If it was that
of the community of students who massed in front of the University
administration building, then it was obviously in their interest that
the strike continued until the respondent Lopez yielded to their
demand. If, on the other hand, it was that of the community of
students who very much wanted to attend classes but were
prevented from doing so, or that of the community of professors
and other scholars who could not get inside the classrooms because
they were barred by the demonstrating students, then the
protection of their rights is to be found in some solution of a police
character and not in the summary removal of the petitioner. The
issue would always thus narrow down to the vindication of a
principle: the rational solution of any controversy. chanroblesvi rtua lawlib rary chan ro bles virtual law lib rary

Of more than passing relevance are these sentiments 17 articulated

by Dr. Sidney Hook of the Department of Philosophy of the New
York University, a thoughtful commentator on the contemporary
university scene: "Due process in the academic community is reliant
upon the process of nationality it cannot bethe same as due process
in the political community as far as the mechanisms of determining
the outcome of rational activity. For what controls the nature
anddirection of due process in the academic community is derived
from its educational goal - the effective pursuit, discovery,
publication, and teachingof the truth. In the political community all
men are equal as citizens not only as participants in, and
contributors to, the political process, but as voters and decision-
makers on the primary level. Not so in the academic community.
What qualifies a man to enjoy equal human or political rights does
not qualify him to teach equally with others or even to study equally
on every level. There is an authoritative, not authoritarian, aspect of
the process of teaching and learning that depends not upon the
person or power of the teacher, but upon the authority of his
knowledge, the cogency of his method,. the scope and depth of his
experience. But whatever the differences in the power of making
decisions flowing from legitimate differences in educational
authority, there is an equality of learners, whether of teachers or
students, in the rational processes by which knowledge is won,
methods developed, and experience enriched." chanrobles v irt ual law l ibra ry

And on the rule of reason in a liberal educational regimen, Professor

Hook gives us pause with his incisive observations: "In a liberal
educational regimen, everything is subject to the rule of reason, and
all are equals as questioners and participants. Whoever interferes
with academic due process either by violence or threat of violence
places himself outside the academic community, and incurs the
sanctions appropriate to the gravity of his offensesfrom censure to
suspension to expulsion. The peculiar deficiency of the ritualistic
liberal educational establishments is the failure to meet violations of
rational due process with appropriate sanctions or to meet them in a
timely and intelligent manner. There is a tendency to close an eye
to expressions of lawless behavior on the part of students who, in
the name of freedom, deprive their fellow students of the freedom
to pursue their fell studies. It is as if the liberal administration
sought to appease the challenge to its continued existence by
treating such incidents as if they had never happened. ... There is
no panacea that can be applied to all situations. It is not a question
of a hard line or a soft line, but of an intelligent line. It is easy to
give advice from hindsight, to be wise and cocksure after the event.
But it is always helpful for the faculty to promulgate in advance fair
guidelines for action, so that students will know what to expect. In
general, no negotiations should be conducted under the threat of
coercion, or when administrators or faculty are held captive."

FERNANDO, J., concurring: chanrobles v irt ual law l ibra ry

There is much in the exhaustive opinion of Justice Sanchez,

impressive for its grasp of the law and breadth of scholarship, that
commends itself for acceptance. Nonetheless, I feel called upon to
express my concurrence separately as for me the question at issue
could be viewed from a narrower perspective. It could also be said,
and this is not intended by way of criticism, that the opinion of the
Court could have accorded a more explicit recognition of the
complexity of the problems that sorely beset the President of the
University of the Philippines and thus result in greater
understanding and sympathy for his efforts to arrive at a correct
and just solution. As the question before us is one of power,
however, even the best of motive cannot be a substitute. Not only
must the objective sought to be attained be within the law, but the
means employed must not suffer from a legal infirmity. To be more
specific, in the case before us, I am unable to reach a conclusion
other than that procedural due process had not been observed in
the removal of petitioner.chanroblesvi rtua lawlib rary chan roble s virtual law lib rary
The view I take of the matter is thus in conformity with that
expressed in the opinion of the Court. Considering all the
circumstances discussed with the fullness of detail by Justice
Sanchez, the steps taken by the University administration, even if
susceptible to the interpretation that they were equivocal at most,
had not been purged of the taint of unfairness thus calling into
operation the protection afforded by the due process guaranty.
There should be by this time no need to stress the obvious that
insofar as security of tenure and the right to the perquisites are
concerned, a public office is indeed property of which the occupant
cannot be deprived save in accordance with its
dictates.1 Nonetheless, to erase any lingering doubts on the matter,
there is nothing inappropriate in reaffirming such a principle. Nor is
there anything incompatible with the principle thus reiterated with
the fundamental postulate that a public office is preeminently a
public trust,the exercise of the authority thus conferred being
conditioned on the official having uppermost in mind what is best
for public welfare.
chanroblesv irt ualawli bra rychan rob les vi rtual law lib rary

Necessarily then in accordance with the security of tenure

guarranty2 of the Constitution and its statutory implementation
under the Civil Service Act,3 this Court has been committed to the
principle that a public official may secure judicial redress for any
suspension or removal contrary to such mandateso explicitly
announced, irrespective of the motives that may have inspired such
a move, if thereby the ground for such disciplinary action is
untenable or the procedure followed is irregular. A host of decisions
attests to such a long, unbroken, impressive course of
adjudication.4 The decision reached by us in this case is therefore
solidly buttressed in authoritative pronouncements. It is well that it
is so. Whatever inconvenience may thus be visited on attempts
concededly taken in the utmost good faith to resolve a critical
impasse is more than offset by adherence to the rule of law. chanroble svirtualawl ibra ryc hanro bles vi rt ual law li bra ry

The Constitution, being the supreme law, its supremacy must be

upheld, its mandates deemed controlling. There is no justification
for any of its commands being disregarded Or set at naught. As so
eloquently put in Ex parte Milligan:5 "The Constitution ... is a law for
rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of
its provisions can be suspended during any of the great exigencies
of government." Petitioner, if he could show that no deference was
paid to his constitutional right to due process, could thus seek
judicial relief, the courts being duty bound to maintain inviolate the
provisions of the fundamental law. chanroble svi rtuala wlibra rycha nrob les vi rtual law lib rary

Nor is such a remedy precluded by petitioner pursuing a course of

conduct which apparently had given cause for grave dissatisfaction
on the part of the student body. Much less could the expression of
discontent on the part of the student body, immoderate in
character, giving rise to what could plausibly be looked upon from
the standpoint of the University administration as an emergency call
for the application of a different principle. It is precisely under such
circumstances that the paramount character of the Constitution
must be accorded due recognition. As so forcefully stressed by
former Chief Hughes: "Emergency does not create power.
Emergency does not increase granted power or remove or diminish
the restrictions imposed upon power granted or reserved. The
Constitution was adopted in a period of grave emergency. Its grants
of power to the Federal Government and its limitations of the power
of the States were determined in the light of emergency and they
are not altered by emergency."6 chanroble s virtual law lib rary

It is to the credit of the opinion of Justice Sanchez that while being

fully cognizant of the amplitude of the constitutional right on the
part of the students to assembly and petition, it reminds them of
the limits thereof. The beneficial results that could be expected of
student activism, expressed at times with more vehemence than the
occasion would call for, might not come to pass if the boundaries of
legally permissible conduct are overstepped. It would seem to me
that the sense of maturity and the spirit of calm deliberation that
should permeate an academic atmosphere should be antidotes to
what at times may be the impatience and exuberance of the young
carried to excess. The words of Justice Frankfurter come to mind:
"It must never be forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty of free speech lay
faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can lose its
significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered
by the Constitution ."7chanrob les vi rtual law lib rary

To the possible objection that there is an air of unreality to the

preceding observation as the University administration was
confronted not by what ought to have been but what in fact was, it
suffices to answer that even then deference to the rule of law was
not thereby rendered impossible. It is to be admitted that it was
much more difficult under the circumstances, but that of itself
certainly could not justify its disregard. This is not to say that there
was such an intent. Far from it. It must be conceded that on the
facts as shown, there was no thought on the part of the University
authorities to trample on the rights of petitioner. Their motive, as
had been noted, was to solve the impasse with the best interests of
the entire University constituency uppermost. Nonetheless, the
purest of motives, to repeat, does not warrant a deviation from
what the law prescribes. chan roblesv irtualawli bra rycha nrob les vi rtua l law lib rary

Nor could reliance be had on the clause that did confer on the
University administration the power to put an end to petitioner's
continuance in his position as Dean. While the term was fixed at five
years, it could be "sooner terminated." In entire good faith then, it
could be interpreted as permitting what was done. If that were all,
then no due process question would have arisen. Such was not the
case though. Charges, not trivial in character, were in fact lodged
against petitioner. To put an end to his term then without giving
him a hearing was to condemn him, considering that apparently t
ere was no indication that such a thing was previously
contemplated, until the attitude of the students did assume such
belligerent posture. It is one thing to inform an official that for the
best interest of the service, and without reflection on his actuations,
a new man should be placed at the helm. It is an entirely different
matter, if subjected as he was to accusations reflecting on his
performance as such official, he is summarily relieved without the
formal hearing to which due process entitles him. It is on this
precise ground that I vote for the granting of the petition and
concur in the result reached by the Court.

BARREDO, J., concurring and dissenting: chanrobles vi rtua l law lib ra ry

In view of the fact that Mr. Justice Sanchez, the writer of the main
opinion is due to retire and it is best that the decision in this case be
promulgated before he leaves this Court, I am constrained to
express briefly now my views on the issues before Us, reserving my
right to make a more extended opinion later should I find it
necessary to do so. chanroble svirtualawl ibra rycha nrob les vi rtua l law lib rary

On the basis of the main facts related in the main opinion, I agree
that respondents Lopez and Board of Regents acted beyond the
scope of their authority in permanently transferring petitioner from
his position as Dean of the College of Education to that of Special
Assistant in the Office of the President, even with rank of dean and
without reduction of salary, for the simple reason that such a
transfer, taking all attendant circumstances into account, did not
comply with the requirements of Section 32 of the Civil Service Act
of 1959, invoked by said respondents, if only because, as the
majority holds, the position of Special Assistant in the Office of the
President, even with empty trappings of a deanship without any
particular college to be dean of, cannot be considered as not a
reduction in rank, even if there be some element of interest of the
service in :the cause thereof. In this concept, I vote that the order
of transfer in question should be stricken down as repugnant to the
Constitution, that petitioner is still the Dean of the College of
Education of the University of the Philippines and thatthe
appointment of respondent Ceralde, even in an ad interim capacity
has no legal basis and is, therefore, void. Parenthetically, this is not
to admit that petitioner has never had an opportunity to be heard,
for conferences, meetings, dialogues, long and deliberative, there
had been many times for months - it is only that We are not
satisfied that such chances as petitioner might have had to air his
views on those occasions conform precisely with the requirements
of due process. chanroble svi rtualawl ib raryc hanrobles virtua l law lib rary
I find it difficult, however, to agree that Dean Santamaria be
returned to the vortex of controversy and thereby bring back the
University to the chaotic condition obtaining at the time the
questioned order was issued, unless, in the meantime, prudence
and sobriety have regained their hold and the fire of excessive
student activism has already sufficiently cooled down because they
have come to understand the inimical consequences of anything
done to excess. If the majority position of completely setting aside
the said order appears to be somehow justified, it is only because in
the face of riotous situation the authorities were lost in confusion as
to how to meet the problem at hand. To my mind, the crisis of
leadership was not a monopoly of the petitioner, it pervaded even
the higher strata of the university hierarchy. To be more precise, it
is not clear to me what exactly is the position of the respondents. If
they are serious in invoking Section 32 abovementioned, then it
must be admitted that the ordered transfer is permanent, and since
as We view it, the requisites of the law for such a transfer have not
been met, the petitioner is right in contending that he is still the
Dean of the College of Education. On the other hand, all throughout
the pleadings of the respondents, iterations and reiterations are
made of the emergency and temporary character of the transfer, to
meet a crisis that could result in the complete paralyzation of the
activities in the University. Is this the real nature of the measure
taken? If this is true, then I find no valid reason why the majority
should insist on completely striking down the order in question.
Precedents there are where the court in passing upon acts
questioned as merely in excess of authority has sanctioned them
only to the extent that they could be construed consistently within
the limits of legitimate authority and the fundamental law of the
land. I consider it as a prudent measure of public administration
that in the face of the student demands, which I am afraid this court
is not in a position to pass upon with the same competence as the
Board of Regents and the university authorities can, it is legally
possible to detail petitioner in the position given to him under the
order, without removing him as Dean of the College of Education,
only f or such duration as may be needed, which must be as
speedily as possible, by the Board of Regents to clear up the matter
of the demand of the students. chanroble svi rtualawl ib raryc hanrobles vi rt ual law li bra ry
In the deliberations, the majority pointed out that no formal charges
have been filed against petitioner. For the purposes, I have
indicated, I believe that as a consequence of the principle and policy
embodied in Section 32, no such charges are needed, considering
the urgency of the circumstances. Otherwise stated, if a permanent
transfer can be made in the interest of the service, provided there is
no reduction in rank and salary, without the need of any charges
being filed and any formal investigation undertaken, it should follow
that a temporary detail may also be legally made to the same end.
Moreover, I do not find in the position taken by petitioner in his last
letter to respondent Board of Regents that he is raising this point.
What he wants is only a formal investigation. I believe the Board is
willing to do that, but petitioner wants to be returned first to his
position before any investigation is started. My answer is, it is right
that he should be restored his rank and position as Dean of the
College of Education, but in the interest of the service and for
broader considerations arising from the unusual situation obtaining
which calls for a little less of legalism and formalism, he should be
amenable to being provisionally detailed elsewhere, with the double
advantage that he is removed as I said, temporarily, from the
vortex of controversy, and at the same time his acknowledged
special qualifications can be made use of by the university in
another aspect of its functions, to the enhancement of the purposes
for which it exists. This is certainly less than being suspended,
which, under the circumstances stated in the main opinion and in
the pleadings of respondents, not effectively rebutted, in my view,
by petitioner, would have been legally possible, had formal charges
been filed against him under Section 34 of the Civil Service Act.1chanrob les vi rtua l law lib ra ry

Before closing, I wish to emphasize that nothing said above

favorable to respondents' position is intended to condone, much less
encourage, mob rule. In fact, my considered view is that this case
can be and ought to be decided without taking into account,
speaking in the language of civilists when referring to contracts, as
a consideration, rather than as a mere reason or motive, the
urgency of placating the students' intransigent attitude, and that
what should concern Us only is whether or not there was enough
substantial basis in the demands of the students to warrant
remedial measures by the university authorities within the confines
of the constitution and the settled principles of free, speech vis-a-
vis the interest of the service and the accomplishment of the ends
of university education which is exactly what the students are there
for. Stated differently, with or without student riots if the demands
of the demonstrators were flimsy and capricious, the respondents
should have firmly stood their ground. On the other hand, with or
without such show of force, the university administration has the
power and, indeed, the duty to take adequate legal steps to meet
the situation with emergency measures that will pave the way for
ultimate permanent solutions more or less acceptable to all
reasonable men. chanroble svirtuala wlibra rycha nrob les vi rtual law lib rary

I would also add that the security of tenure consecrated in the

constitution should not be construed as placing the government in a
position as if it owed all officers and employees their respective
positions. On the other hand, under this constitutional mantle,
persons in the government service are not mere beasts of burden,
much less inanimate pawns on a chessboard to be moved at will by
their administrators. I feel very strongly that public service or
employment in the government is not just a means of living - it
carries with it a sense of mission, a tinge of patriotism and a
considerable degree of the spirit of sacrifice readily to be offered in
the altar of the commonwealth as long as there is no trampling of
human dignity. I recognize no primacy in any of the rights
enshrined in the constitution - rather, I hold that it is the
inescapable peculiar function and duty of the courts to determine in
appropriate instances, given God's light, where one ends and where
only the other begins. chanrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry

In conclusion, I hold that the order in question should be construed

as a mere temporary measure that does not in any manner
minimize the status of petitioner as Dean of the College of
Education and as merely a temporary detail of said petitioner to the
Office of the President until the Board of Regents has acted on his
petition filed therewith, action on which he impeded by somehow
prematurely coming to this Court. I vote that the petition be denied
and the transfer order in question upheld only in the character and
nature explained in this opinion, that is, as a temporary detail,
without removing petitioner as Dean of the College of Education.
Villamor, J., concurs.

Separate Opinions

CASTRO, J., concurring:

As the sole question posed in this case is whether the petitioner

Felixberto C. Sta. Maria was removed from his position as Dean of
the College of Education of the University of the Philippines, I deem
it appropriate to begin this concurrence with the text of the transfer
order issued by the respondent Salvador P. Lopez on July 23, 1969:
.

UNIVERSITY OF THE PHILIPPINES

Quezon City

Office of the President

July 23, 1969

ADMINISTRATIVE ORDER NO. 77

TO: Dean Felixberto C. Sta. Maria

College of Education

SUBJECT: TRANSFER TO THE OFFICE OF THE

PRESIDENT

By special authority vested in me by the Board of Regents and

pursuant to the Civil Service Law and the University Code, you are
hereby transferred from the College of Education to the Office of the
President as Special Assistant with the rank of Dean, without
reduction in salary, in the interest of the service.

This transfer involves your administrative position only and in no

way affects your status as professor of the University.

This order shall take effect immediately.

(Sgd.) Salvador P. Lopez
President

To me the meaning of this order is unmistakable: Sta. Maria was

relieved as Dean of the U.P. College of Education and was assigned
to the Office of the President as a Special Assistant "with the rank of
Dean." That was how the action of the respondent Lopez was
understood by certain thoughtful and knowledgeable elements of
the University of the Philippines.1 Now the respondents would
minimize it as no more than a mere "temporary transfer" or, more
accurately, a detail, which does not involve removal in the
constitutional sense of the petitioner from the deanship of the
College of Education.

I find myself hard put to give the disputed order the meaning now
ascribed to it by the respondents. In the first place, if the petitioner
was not removed as dean of the College of Education, I do not see
why it was necessary to invest him the "rank of Dean." Was he not
already a dean of a college? To say that as Special Assistant to the
University President the petitioner would have "the rank of Dean" is
to say that he was not actually a Dean, in the same way that to say
that one has the rank of a judge is to say, albeit impliedly, that one
is not a judge - else why give him the rank of an officer which he
already is?2

In the second place, the issuance of an ad interim appointment to

the respondent Nemesio Ceralde as Acting Dean of the U.P. College
of Education underscores the fact that the petitioner had ceased to
be the dean of the college. It meant, simply, that the respondent
Ceralde was appointed dean vice the petitioner. For unless the
position of Dean of the College of Education was vacant there could
be no appointment to it. Could it be considered vacant if the
petitioner had merely been temporarily detailed to the Office of the
President of the University?

And finally, that the petitioner was appointed to a new position and
not merely detailed thereto was confirmed by the respondent
Lopez's own counsel who, at the hearing on July 29, 1969 before
the Board of Regents of the University, admitted that the transfer
 order constituted an ad interim appointment of the petitioner as
Special Assistant to the U.P. President.3

There are other overriding circumstances, already pointed out in the

opinion of the Court, which completely negate the respondents'
claim that the petitioner was not removed from his post but merely
temporarily assigned to another office, but I think the best and final
refutation of the respondents' pretense is to be found in the press
statement given by the respondent Lopez himself on the same day
(July 23, 1969) he issued the transfer order. The statement reads in
part:

After long and careful consideration, I have come to the conclusion

that as President of the University I cannot permit the continued
disruption of the academic life of the institution. In the interest of
the service, therefore, and availing myself of the authority vested in
me by law, I have issued an order transferring Dean Felixberto C.
Sta. Maria of the College of Education to other duties in the
University, without reduction in rank or salary, pursuant to the Civil
Service Law and the University Code. ...

In an effort to persuade the students to return to their classes

pending negotiation of their demands, the Administration has called
a series of meetings between the faculty, the students, Dean Sta.
Maria and the President of the University. These meetings, however,
proved fruitless in the face ,of the refusal of the College of
Education students to discuss any further their demands unless and
until Dean Sta. Maria resigns his position. ...

[T]he complete shut-down of classes in the Diliman campus has

compelled me, much to my regret, to take the decision to transfer
Dean Sta. Maria to other duties. In taking this difficult decision, I
was encouraged by the vote of confidence which was unanimously
adopted by the faculty of the College of Education this morning, in
any decision which the President might take in the best interest of
the University.4

Again, in a press release issued the following day, July 25, 1969, he
emphasized:
I proposed to the striking students that Dean Sta. Maria be not
made to resign under pressure but that he should remain in his post
until the endof the semester. They turned this down.

In the circumstances, I decided that the only course left open to me

in order to keep the University open was to transfer Dean Sta. Maria
to other duties, in the same rank and salary, as provided by the
Civil Service Law and the University Code.

I deeply regret that I have had to take this difficult decision, but I
had nochoice. As President Truman once said, "The buck stops
here," and I must add, 'the U.P. is greater and more important than
any man.5

These statements made right on the heels of the issuance of the

disputed order, rather than the later statements of the respondent
Lopez, reveal, I believe, the true nature of the petitioner's relief.
They demonstrate beyond cavil that the petitioner's head was the
price demanded by the striking students and that the petitioner's
head was precisely and exactly the price paid in exchange for peace
on the campus. For if the intended result of the action taken in this
case was no more than a mere "detail" of the petitioner, then it
hardly deserved the characterization as "this difficult decision"
which the U.P. President "with deep regret" had to take,
"encouraged" by the thought that he had the vote of confidence of
the colleges faculty.

It may indeed be that the position of Special Assistant to the

President of the University is of a higher category than that of a
college dean and that for that reason the petitioner was not
demoted. But to view the matter from this angle of vision is to miss
completely the point at issue, namely, that the transfer of an
employee from one post in the civil service to another, if objected to
by him, can be justified only if there be some cause recognized by
law.

Is not this what this Court meant when it ruled that the
unconsented transfer of a civil service employee, no matter how
well-intended, as a promotion, is "equivalent to a removal," and, if
made without prior hearing, is violativeof the Constitution? 6 As this
Court noted:

But in justice to the President and the Commission on

Appointments, let it be stated once again that it would seem that
the transfer of the petitioner to Tarlac was not meant and intended
as a punishment, a disciplinary measure or demotion. It was really
a promotion, at least at the time the appointment was made. Only,
that later, due to a change in the category of Oriental Negros as a
province, the transfer was no longer a promotion in salary. And yet
the respondent and the Solicitor General insisted on the transfer
despite the refusal of the petitioner to accept his new appointment.7

The rule in Lacson is now embodied in statute:

[A] transfer from one position to another without reduction in rank

or salary shall not be considered disciplinary when made in the
interest of public service, in which case the employee concerned
shall be informed of the reasons therefor. If the employee believes
that there is no justification for the transfer, he may appeal his case
to the Commission on Civil Service through the Department Head.
Pending appeal and decision thereof, his transfer shall be held in
abeyance. ...8

This statutory provision reflects the view that because by nature a

transfer (as distinguished from a mere detail) involves a removal
from one position and an appointment to another, there must first
be a hearing. And so, while the respondents Lopez and U.P. Board
of Regents might not be expected to follow the precise procedure
for transfer as outlined in the amendment to the statute, since this
did not take effect until August 4, 1969 (a few days after the
petitioner's relief), -they were, to my mind, nevertheless bound
toobserve those "canons of decency and fairness"9 of which the due
process clause is the "summarized constitutional guarantee of
respect." 10 And due process of law requires at the very least that
there be notice and hearing, 11 lest the summary transfer of a civil
service employee offend "a sense of justice." 12

Is to uphold the petitioner's right to a hearing to overlook the larger

interests of society, to exalt the individual at the expense of the
community? Is it, nineteenth-century bourgeois thinking, so wanting
in relevance as to be regarded as outmoded or obsolete in an age of
mass demonstrations and confrontations?

The respondent Lopez justifies his action in terms of what he

conceives to be the interest of the community that is the University
which had been completely shut down by student boycott. As he
stressed, "the U.P. is greater and more important than any man."

But the respect due the integrity of the individual is by no means

antithetical to the interests of society. On the contrary, one
reinforces the other, as the philosopher Reinhold Niebuhr has so
beautifully brought out in his book, "The Children of Light and the
Children of Darkness." 13 While bourgeois democracy, with its
enshrining of the individual at the center stage of society, has now
generally been replaced by a new social consciousness, its emphasis
on liberty nevertheless contains an element of validity that
transcends its excessive individualism. 14 Perhaps it would be closer
to the truth to say that the community requires liberty as much as
does the individual and the individual requires community more
than bourgeois thought comprehended. 15 As Dr. Niebuhr explains:

The man who searches after both meaning and fulfillments beyond
the ambiguous fulfillments and frustrations of history exists in a
height of spirit which no historical process can completely contain.
This height is not irrelevant to the life of the community, because
new richness and a higher possibility of justice come to the
community from this height of awareness. But the height is
destroyed by any community which seeks prematurely to cut off this
pinnacle of individuality in the interest of the community's peace
and order. 16

And what was the community interest involved here? If it was that
of the community of students who massed in front of the University
administration building, then it was obviously in their interest that
the strike continued until the respondent Lopez yielded to their
demand. If, on the other hand, it was that of the community of
students who very much wanted to attend classes but were
prevented from doing so, or that of the community of professors
and other scholars who could not get inside the classrooms because
they were barred by the demonstrating students, then the
protection of their rights is to be found in some solution of a police
character and not in the summary removal of the petitioner. The
issue would always thus narrow down to the vindication of a
principle: the rational solution of any controversy.

Of more than passing relevance are these sentiments 17 articulated

by Dr. Sidney Hook of the Department of Philosophy of the New
York University, a thoughtful commentator on the contemporary
university scene: "Due process in the academic community is reliant
upon the process of nationality it cannot bethe same as due process
in the political community as far as the mechanisms of determining
the outcome of rational activity. For what controls the nature
anddirection of due process in the academic community is derived
from its educational goal - the effective pursuit, discovery,
publication, and teachingof the truth. In the political community all
men are equal as citizens not only as participants in, and
contributors to, the political process, but as voters and decision-
makers on the primary level. Not so in the academic community.
What qualifies a man to enjoy equal human or political rights does
not qualify him to teach equally with others or even to study equally
on every level. There is an authoritative, not authoritarian, aspect of
the process of teaching and learning that depends not upon the
person or power of the teacher, but upon the authority of his
knowledge, the cogency of his method,. the scope and depth of his
experience. But whatever the differences in the power of making
decisions flowing from legitimate differences in educational
authority, there is an equality of learners, whether of teachers or
students, in the rational processes by which knowledge is won,
methods developed, and experience enriched."

And on the rule of reason in a liberal educational regimen, Professor

Hook gives us pause with his incisive observations: "In a liberal
educational regimen, everything is subject to the rule of reason, and
all are equals as questioners and participants. Whoever interferes
with academic due process either by violence or threat of violence
places himself outside the academic community, and incurs the
sanctions appropriate to the gravity of his offensesfrom censure to
suspension to expulsion. The peculiar deficiency of the ritualistic
liberal educational establishments is the failure to meet violations of
rational due process with appropriate sanctions or to meet them in a
timely and intelligent manner. There is a tendency to close an eye
to expressions of lawless behavior on the part of students who, in
the name of freedom, deprive their fellow students of the freedom
to pursue their fell studies. It is as if the liberal administration
sought to appease the challenge to its continued existence by
treating such incidents as if they had never happened. ... There is
no panacea that can be applied to all situations. It is not a question
of a hard line or a soft line, but of an intelligent line. It is easy to
give advice from hindsight, to be wise and cocksure after the event.
But it is always helpful for the faculty to promulgate in advance fair
guidelines for action, so that students will know what to expect. In
general, no negotiations should be conducted under the threat of
coercion, or when administrators or faculty are held captive."

FERNANDO, J., concurring:

There is much in the exhaustive opinion of Justice Sanchez,

impressive for its grasp of the law and breadth of scholarship, that
commends itself for acceptance. Nonetheless, I feel called upon to
express my concurrence separately as for me the question at issue
could be viewed from a narrower perspective. It could also be said,
and this is not intended by way of criticism, that the opinion of the
Court could have accorded a more explicit recognition of the
complexity of the problems that sorely beset the President of the
University of the Philippines and thus result in greater
understanding and sympathy for his efforts to arrive at a correct
and just solution. As the question before us is one of power,
however, even the best of motive cannot be a substitute. Not only
must the objective sought to be attained be within the law, but the
means employed must not suffer from a legal infirmity. To be more
specific, in the case before us, I am unable to reach a conclusion
other than that procedural due process had not been observed in
the removal of petitioner.

The view I take of the matter is thus in conformity with that

expressed in the opinion of the Court. Considering all the
circumstances discussed with the fullness of detail by Justice
 Sanchez, the steps taken by the University administration, even if
susceptible to the interpretation that they were equivocal at most,
had not been purged of the taint of unfairness thus calling into
operation the protection afforded by the due process guaranty.
There should be by this time no need to stress the obvious that
insofar as security of tenure and the right to the perquisites are
concerned, a public office is indeed property of which the occupant
cannot be deprived save in accordance with its
dictates. Nonetheless, to erase any lingering doubts on the matter,
1

there is nothing inappropriate in reaffirming such a principle. Nor is

there anything incompatible with the principle thus reiterated with
the fundamental postulate that a public office is preeminently a
public trust,the exercise of the authority thus conferred being
conditioned on the official having uppermost in mind what is best
for public welfare.

Necessarily then in accordance with the security of tenure

guarranty2 of the Constitution and its statutory implementation
under the Civil Service Act,3 this Court has been committed to the
principle that a public official may secure judicial redress for any
suspension or removal contrary to such mandateso explicitly
announced, irrespective of the motives that may have inspired such
a move, if thereby the ground for such disciplinary action is
untenable or the procedure followed is irregular. A host of decisions
attests to such a long, unbroken, impressive course of
adjudication.4 The decision reached by us in this case is therefore
solidly buttressed in authoritative pronouncements. It is well that it
is so. Whatever inconvenience may thus be visited on attempts
concededly taken in the utmost good faith to resolve a critical
impasse is more than offset by adherence to the rule of law.

The Constitution, being the supreme law, its supremacy must be

upheld, its mandates deemed controlling. There is no justification
for any of its commands being disregarded Or set at naught. As so
eloquently put in Ex parte Milligan:5 "The Constitution ... is a law for
rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of
its provisions can be suspended during any of the great exigencies
of government." Petitioner, if he could show that no deference was
paid to his constitutional right to due process, could thus seek
judicial relief, the courts being duty bound to maintain inviolate the
provisions of the fundamental law.

Nor is such a remedy precluded by petitioner pursuing a course of

conduct which apparently had given cause for grave dissatisfaction
on the part of the student body. Much less could the expression of
discontent on the part of the student body, immoderate in
character, giving rise to what could plausibly be looked upon from
the standpoint of the University administration as an emergency call
for the application of a different principle. It is precisely under such
circumstances that the paramount character of the Constitution
must be accorded due recognition. As so forcefully stressed by
former Chief Hughes: "Emergency does not create power.
Emergency does not increase granted power or remove or diminish
the restrictions imposed upon power granted or reserved. The
Constitution was adopted in a period of grave emergency. Its grants
of power to the Federal Government and its limitations of the power
of the States were determined in the light of emergency and they
are not altered by emergency."6

It is to the credit of the opinion of Justice Sanchez that while being

fully cognizant of the amplitude of the constitutional right on the
part of the students to assembly and petition, it reminds them of
the limits thereof. The beneficial results that could be expected of
student activism, expressed at times with more vehemence than the
occasion would call for, might not come to pass if the boundaries of
legally permissible conduct are overstepped. It would seem to me
that the sense of maturity and the spirit of calm deliberation that
should permeate an academic atmosphere should be antidotes to
what at times may be the impatience and exuberance of the young
carried to excess. The words of Justice Frankfurter come to mind:
"It must never be forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty of free speech lay
faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of
 communication that the guaranty of free speech was given a
generous scope. But utterance in a context of violence can lose its
significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered
by the Constitution ."7

To the possible objection that there is an air of unreality to the

preceding observation as the University administration was
confronted not by what ought to have been but what in fact was, it
suffices to answer that even then deference to the rule of law was
not thereby rendered impossible. It is to be admitted that it was
much more difficult under the circumstances, but that of itself
certainly could not justify its disregard. This is not to say that there
was such an intent. Far from it. It must be conceded that on the
facts as shown, there was no thought on the part of the University
authorities to trample on the rights of petitioner. Their motive, as
had been noted, was to solve the impasse with the best interests of
the entire University constituency uppermost. Nonetheless, the
purest of motives, to repeat, does not warrant a deviation from
what the law prescribes.

Nor could reliance be had on the clause that did confer on the
University administration the power to put an end to petitioner's
continuance in his position as Dean. While the term was fixed at five
years, it could be "sooner terminated." In entire good faith then, it
could be interpreted as permitting what was done. If that were all,
then no due process question would have arisen. Such was not the
case though. Charges, not trivial in character, were in fact lodged
against petitioner. To put an end to his term then without giving
him a hearing was to condemn him, considering that apparently t
ere was no indication that such a thing was previously
contemplated, until the attitude of the students did assume such
belligerent posture. It is one thing to inform an official that for the
best interest of the service, and without reflection on his actuations,
a new man should be placed at the helm. It is an entirely different
matter, if subjected as he was to accusations reflecting on his
performance as such official, he is summarily relieved without the
formal hearing to which due process entitles him. It is on this
 precise ground that I vote for the granting of the petition and
concur in the result reached by the Court.

BARREDO, J., concurring and dissenting:

In view of the fact that Mr. Justice Sanchez, the writer of the main
opinion is due to retire and it is best that the decision in this case be
promulgated before he leaves this Court, I am constrained to
express briefly now my views on the issues before Us, reserving my
right to make a more extended opinion later should I find it
necessary to do so.

On the basis of the main facts related in the main opinion, I agree
that respondents Lopez and Board of Regents acted beyond the
scope of their authority in permanently transferring petitioner from
his position as Dean of the College of Education to that of Special
Assistant in the Office of the President, even with rank of dean and
without reduction of salary, for the simple reason that such a
transfer, taking all attendant circumstances into account, did not
comply with the requirements of Section 32 of the Civil Service Act
of 1959, invoked by said respondents, if only because, as the
majority holds, the position of Special Assistant in the Office of the
President, even with empty trappings of a deanship without any
particular college to be dean of, cannot be considered as not a
reduction in rank, even if there be some element of interest of the
service in :the cause thereof. In this concept, I vote that the order
of transfer in question should be stricken down as repugnant to the
Constitution, that petitioner is still the Dean of the College of
Education of the University of the Philippines and thatthe
appointment of respondent Ceralde, even in an ad interim capacity
has no legal basis and is, therefore, void. Parenthetically, this is not
to admit that petitioner has never had an opportunity to be heard,
for conferences, meetings, dialogues, long and deliberative, there
had been many times for months - it is only that We are not
satisfied that such chances as petitioner might have had to air his
views on those occasions conform precisely with the requirements
of due process.

I find it difficult, however, to agree that Dean Santamaria be

returned to the vortex of controversy and thereby bring back the
 University to the chaotic condition obtaining at the time the
questioned order was issued, unless, in the meantime, prudence
and sobriety have regained their hold and the fire of excessive
student activism has already sufficiently cooled down because they
have come to understand the inimical consequences of anything
done to excess. If the majority position of completely setting aside
the said order appears to be somehow justified, it is only because in
the face of riotous situation the authorities were lost in confusion as
to how to meet the problem at hand. To my mind, the crisis of
leadership was not a monopoly of the petitioner, it pervaded even
the higher strata of the university hierarchy. To be more precise, it
is not clear to me what exactly is the position of the respondents. If
they are serious in invoking Section 32 abovementioned, then it
must be admitted that the ordered transfer is permanent, and since
as We view it, the requisites of the law for such a transfer have not
been met, the petitioner is right in contending that he is still the
Dean of the College of Education. On the other hand, all throughout
the pleadings of the respondents, iterations and reiterations are
made of the emergency and temporary character of the transfer, to
meet a crisis that could result in the complete paralyzation of the
activities in the University. Is this the real nature of the measure
taken? If this is true, then I find no valid reason why the majority
should insist on completely striking down the order in question.
Precedents there are where the court in passing upon acts
questioned as merely in excess of authority has sanctioned them
only to the extent that they could be construed consistently within
the limits of legitimate authority and the fundamental law of the
land. I consider it as a prudent measure of public administration
that in the face of the student demands, which I am afraid this court
is not in a position to pass upon with the same competence as the
Board of Regents and the university authorities can, it is legally
possible to detail petitioner in the position given to him under the
order, without removing him as Dean of the College of Education,
only f or such duration as may be needed, which must be as
speedily as possible, by the Board of Regents to clear up the matter
of the demand of the students.

In the deliberations, the majority pointed out that no formal charges

have been filed against petitioner. For the purposes, I have
indicated, I believe that as a consequence of the principle and policy
embodied in Section 32, no such charges are needed, considering
the urgency of the circumstances. Otherwise stated, if a permanent
transfer can be made in the interest of the service, provided there is
no reduction in rank and salary, without the need of any charges
being filed and any formal investigation undertaken, it should follow
that a temporary detail may also be legally made to the same end.
Moreover, I do not find in the position taken by petitioner in his last
letter to respondent Board of Regents that he is raising this point.
What he wants is only a formal investigation. I believe the Board is
willing to do that, but petitioner wants to be returned first to his
position before any investigation is started. My answer is, it is right
that he should be restored his rank and position as Dean of the
College of Education, but in the interest of the service and for
broader considerations arising from the unusual situation obtaining
which calls for a little less of legalism and formalism, he should be
amenable to being provisionally detailed elsewhere, with the double
advantage that he is removed as I said, temporarily, from the
vortex of controversy, and at the same time his acknowledged
special qualifications can be made use of by the university in
another aspect of its functions, to the enhancement of the purposes
for which it exists. This is certainly less than being suspended,
which, under the circumstances stated in the main opinion and in
the pleadings of respondents, not effectively rebutted, in my view,
by petitioner, would have been legally possible, had formal charges
been filed against him under Section 34 of the Civil Service Act.1

Before closing, I wish to emphasize that nothing said above

favorable to respondents' position is intended to condone, much less
encourage, mob rule. In fact, my considered view is that this case
can be and ought to be decided without taking into account,
speaking in the language of civilists when referring to contracts, as
a consideration, rather than as a mere reason or motive, the
urgency of placating the students' intransigent attitude, and that
what should concern Us only is whether or not there was enough
substantial basis in the demands of the students to warrant
remedial measures by the university authorities within the confines
of the constitution and the settled principles of free, speech vis-a-
vis the interest of the service and the accomplishment of the ends
of university education which is exactly what the students are there
for. Stated differently, with or without student riots if the demands
of the demonstrators were flimsy and capricious, the respondents
should have firmly stood their ground. On the other hand, with or
without such show of force, the university administration has the
power and, indeed, the duty to take adequate legal steps to meet
the situation with emergency measures that will pave the way for
ultimate permanent solutions more or less acceptable to all
reasonable men.

I would also add that the security of tenure consecrated in the

constitution should not be construed as placing the government in a
position as if it owed all officers and employees their respective
positions. On the other hand, under this constitutional mantle,
persons in the government service are not mere beasts of burden,
much less inanimate pawns on a chessboard to be moved at will by
their administrators. I feel very strongly that public service or
employment in the government is not just a means of living - it
carries with it a sense of mission, a tinge of patriotism and a
considerable degree of the spirit of sacrifice readily to be offered in
the altar of the commonwealth as long as there is no trampling of
human dignity. I recognize no primacy in any of the rights
enshrined in the constitution - rather, I hold that it is the
inescapable peculiar function and duty of the courts to determine in
appropriate instances, given God's light, where one ends and where
only the other begins.

In conclusion, I hold that the order in question should be construed

as a mere temporary measure that does not in any manner
minimize the status of petitioner as Dean of the College of
Education and as merely a temporary detail of said petitioner to the
Office of the President until the Board of Regents has acted on his
petition filed therewith, action on which he impeded by somehow
prematurely coming to this Court. I vote that the petition be denied
and the transfer order in question upheld only in the character and
nature explained in this opinion, that is, as a temporary detail,
without removing petitioner as Dean of the College of Education.

Villamor, J., concurs.

Endnotes:

1 Specifically, they are: (a) Inadequacies of the Education library;

(b) Student representation in the board of editors of the Education
Quarterly; (e) Inadequate information to graduate students
regarding policies affecting their academic work; (d) Inadequate
guidelines and policies regarding thesis advising and other aspects
of faculty work, which prejudice students; (e) Restrictions on
enrollment in certain graduate courses; (f) Abolition of foreign
language requirements; (g) elimination of topic panel for research
courses; (h) Superfluity of comprehensive examinations for
graduate students; (i) Reexamination of agreements with the
Bureau of Public Schools towards standardization of terms of
scholarships; and (j) Student representation in college committees.
Answer, p. 10.

2 These are: (a) Contributions from students for preparation of

hand-outs; (b) Deterioration of facilities in the College; (c) Opening
of the graduate office during regular hours; (d) Orientation program
for new graduate students and new faculty members; and (e)
Dormitory for graduate students. Answer, pp. 10-11.

3 These are: (a) Protest against assignment of Prof. Rionda to teach

a subject not in her area of specialization; (b) Assessment of
procedures on faculty assignments and faculty competencies; (c)
Need for coordinator in the Special Education Program (SPED); (d)
Recruitment of more instructors for the SPED Program; (e) Facilities
for practicum supervisors; (f) No threat of court suits against
complaining students; (g) Information to teacher students or
grading system and values; (h) Re-evaluation of a grade should
extend to all requirements of the course, not merely the final
examination; (i) Board review of the fusion of a special education
and programmed instruction into one department; and (j) Possible
institution of a separate Department of Pilipino in the College of Arts
and Sciences. Answer, p. 11.

4 To meet the students' demands, he took the following steps: (a)

Issued Memorandum No. 20 on monetary contributions; (b) Issued
Memorandum No. 22 on the revised hours of the College library; (c)
Issued Memorandum No. 26 on consultation ours and the final
examination schedule; (d) Issued Memorandum No. 21 assigning a
temporary officer-in charge of the Special Education Program; (e)
Secured a car for the urgent practicum assignment of the Special
Education supervisors; (f) Sent a letter to the President requesting
for the services of a janitress, and subsequently secured one, who
started working on March 17, 1969; (g) Sent a letter to the
President recommending the relocation of non- education offices,
such as the Community Development Research Council and the
Department of Psychology; (h) Sent a letter to the President urging
the equitable settlement of the water and electric bills of the
College; (i) Sent recommendations for permanency of status and
adjustment of salaries of deserving academic and non-academic
personnel; (j) Mediated between the students and Miss Carolina
Rionda, who was complained against by students in Education 124.
The students agreed to meet face-to-face with Miss Rionda in an
amicable settlement of the dispute. Miss Rionda agreed to
accommodate the students in most cases. Annex, Answer.

5 These steps are: (a) Inclusion of two student representatives (one

graduate and one undergraduate) in the editorial board of
the Education Quarterly, upon nomination by the students; (b)
Reiteration of the recommendation of the College of Education for
the organization of a Graduate Studies program with a director, to
help solve many problems in the graduate program. Original
proposal was made on August 15, 1968, but deferred by the Board
of Regents in its meeting on October 24, 1968; (c) Holding a formal
orientation program, both undergraduate and graduate students, at
the beginning of each academic year; (d) Abolition of the topic
panel in graduate work; (e) Representation of the students, both
graduate and undergraduate, in college committees which concern
them. (Examples: Curriculum Committee, Student-Faculty Relation
Committee, Library Committee, Social and Cultural Committee); (f)
Replacement of the classroom chairs (initial delivery of 600 chairs
expected within two weeks). Original request for these chairs was
made on September 24, 1968; a previously approved requisition in
1967 was cancelled. Annex 2, Answer.

6 These are: (a) Recommendation to review the foreign language

requirement in the graduate program. Sentiment is for substituting
 other requirements for the formal language requirement on the
master's degree level. Student representatives will be invited during
the discussion of this particular item in the curriculum committee
meeting as well as the faculty meeting, if necessary; (b)
Recommendation to review the comprehensive examination
requirement for work on the master's degree level. Sentiment is to
retain this particular requirement, but excluding the part on
cognates; (c) Recommendation to institute a system of faculty
evaluation by students, using an appropriate instrument; (d)
Recommendation for an appropriate faculty committee to look into
instruction practices, with students' opinion taken into account in
the meetings of the student-faculty relations Committee; (e) The
institution of a Graduate Record Examination for admission to
candidacy on the master's level and admission to the doctoral
program; (f) The issuance of a brochure or an equivalent guide to
clarify the procedures to be followed in graduate work in both the
masteral and doctoral levels. Annex 2 of Answer; Annex B of Reply.

7 The demands which had been granted by Dean Sta. Maria were:
(a) Longer library hours; (b) Employment of a janitress for the
ladies comfort room; (c) Purchase of new chairs; (d) Installation of
proper lighting facilities; (e) Repainting of classrooms; (f) Cleaner
corridors, classrooms and surroundings; (g) Free choice of thesis
advisers and organization adviser; (h) Abolition of topic panel; (i)
Temporary appointment of coordinator for SPED Program; and (j)
Representation of students in the college standing committees.

8 Annex 11, Answer.

9 Austria vs. Amante, 79 Phil. 780, 784 (1948).

10 Supra, at P. 467, citing State ex rel. Gallaghar vs. Brown, 57 Mo.

Ap., 203, expressly adopted by the Supreme Court in State ex rel.
vs. Maroney, 191 Mo. 548; 90 S.W. 141; State vs. Crandell, 269
Mo. 44; 190 S.W. 889; State vs. Salval 450, 2d. 995; 62 C.J.S.
947.

11 Tapales vs. President of the University of the Philippines, L-

17523, March 30, 1963, 7 SCRA 553, 557. Also Article II, Section
5(e) Republic Act 2260, Civil Service Act of 1959, which states:
"The following specific officers and employees shall be embraced in
the non-competitive or unclassified service: ... (e) Members of the
various faculties and other teaching force of the University of the
Philippines and other government colleges offering courses in the
collegiate level, including the business directors and registrars of
said institution."

12 Lacson vs. Romero, 84 Phil. 740 (1949); Garcia vs. Lejano L-

12220, August 8, 1960; Santos vs. Mallare, 87 Phil. 289 (1950);
Rodriguez vs. Del Rosario, 93 Phil. 1070 (1963).

13 Section 4, Article XII, Constitution: "No officer or employee in

the Civil Service shall be removed or suspended except for cause as
provided by law." Section 32, Article VII, Civil Service Act of 1959:
"Disciplinary Action.-No officer or employee in the civil service shall
be removed or suspended except for cause as provided by law and
after due process: Provided, That a transfer from one position to
another without reduction in rank or salary shall not be considered
disciplinary when made in the interest of public service: Provided,
further, That no complaint against a civil service official or employee
shall be given due course unless the same is in writing and
subscribed and sworn to by the complainant: And provided, finally,
That the respondent shall be entitled to a formal investigation if he
so elects in which case he shall have the right to appear and defend
himself at said investigation in person or by counsel, to confront and
cross-examine the witnesses against him, and to have the
attendance of witnesses and production of documents in his favor
by compulsory process of subpoena or subpoena duces tecum."

14 Section 6(e) Act 1870.

15 Article 263, UP Revised Code.

16 Answer, p. 27, paragraph c; Annex 18, Appendix A-1.

17 Answer, p. 27 paragraph e.

18 Answer, p. 20, paragraph 5; Annex 15.

19 Answer, p. 20, paragraph 6.

20 Answer, p. 21, paragraph 7. Press statements would indedicate
that of late the UP President appointed four Vice Presidents. Sta.
Maria was not one of them.

21 Answer, p. 25, paragraphs 1-3; Annex 18 and Appendix A-1.

22 Section 1, Rule V-F Civil Service Rules.

23 Section 1, Rule VII, id.

24 Reed vs. City Council of City of Roseville, 141 Pac. 2d. 459, 463.

25 Garcia vs. Lejano, L-12220, August 8, 1960.

26 Lacson va. Romero, supra; Nicolas vs. Alberto, 51 Phil. 370, 377
(1928), reversed in 73 L. ed. 642; Borromeo vs. Mariano, 41 Phil.
323, 328 (1921); Branin vs. Township of Delaware, 3 A 2d. 806.

27 47 Am. Jur., p. 394.

28 Branin vs. Township of Delaware, supra; McNeal vs. Avoyelles

Parish School Board, 7 So. 2d 165, 167; McCarthy vs. Steinkeeler,
270 N.W. 550, 554.

29 Reed v. City Council of City of Roseville, supra.

30 State vs. Montoya, 386 Pac. 2d. 253, 257. See also: Mitchell vs.
Board of Trustees of Visalia Union High School, 42 Pac. 2d. 397;
State ex rel. Ging vs.Board of Education of City of Duluth 7 N.W. 2d.
544, 561; Neal vs. Board of Education, 181 S.E. 541, 542; White
vs. Board of Education, 184 S.E. 264, 268; State vs. Yoakum 297
S.W. 2d. 635. These cases recognize the power of the Board of
Education to assign teachers to particular classes provided that the
power is exercised in good faith and for the best interest of the
school district and is based upon actually existing conditions
and not for the purpose of compelling a teacher's resignation.

31 Hojilla vs. Mario, L-20574, February 26, 1965, 13 SCRA 293,

296.
 32 Brillantes vs. Guevarra, L-22586, February 27, 1969, 27 SCRA
138, 143.

33 Ibaez vs. Commission on Elections, L-26558, April 27, 1967, 19

SCRA 1002, 1012, citing Miclat vs. Ganaden, L-11459, May 30,
1960; Jaro vs. Valencia, L-18352, August 30, 1963, 8 SCRA
729. See also: Suarez vs. Commission on Elections, L- 26605, July
27, 1967, 20 SCRA 797; Co vs. Commission on Elections, L-27121,
July 21, 1967, 20 SCRA 761; Real vs. Commission on Elections, L-
27266, September 29, 1967, 21 SCRA 331; Amponin vs.
Commission on Elections, L-27420, September 29, 1967, 21 SCRA
389, 391.

34 Section 12 of the Tax Code: "The Collector of Internal Revenue

may, with the approval of the Secretary of Finance, assign internal
revenue agents and other officers and employees of the Bureau of
Internal Revenue without change in their official character or salary
to such special duties connected with the administration of laws as
the best interest of service may require."

35 Castro vs. Hechanova, L-23635, August 31, 1966, 17 SCRA

1023, 1028.

36 Subido vs. Gopengco, L-25618, March 28, 1969, 27 SCRA 455,

461.

37 Garcia vs. Teehankee, L-29113, April 18, 1969, 27 SCRA 937

and Garcia vs. Teehankee, L-28747, April 28, 196'9, 27 SCRA 1142,
a Court Stenographer reassigned to the main office to enable her to
transcribe her notes of cases on appeal; Quiocho vs. Abrera, L-
22260, August 20, 1967, 20 SCRA 1151, a cost accountant
reassigned from the Iligan Plant to Manila.

38 Section 5, Act 1870.

39 Section 6(e) Act 1870; Articles 160-171, 263-265, UP Revised

Code.

40 Article 43, UP Revised Code.

41 Faculty members include the deans and directors, Article 71, UP
Revised Code.

42 Article 44(g), UP Revised Code.

43 Article 43, id.

44 Brillantes vs. Guevarra, supra.

45 Lacson vs. Romero, supra; Borromeo vs. Mariano, supra.

46 Annex J, Reply, Rollo, pp. 149, 164.

47 Annex J, Reply, Rollo, pp. 149, 165.

48 Annex K, Reply of Petitioner; Memorandum for Respondent, pp.

54-57; Answer of Respondents, pp. 6-8.

49 Respondents' Memorandum, p. 58.

50 Alzate vs. Mabutas (CA), 51 O.G. 2451, 2462, citing Frankfurter,

Justice Holmes and the Supreme Court, pp. 34, 47.

51 The Gospel according to St. John, 7:51: "Does our Law judge a
man unless it first give him a hearing, and know what he
does?" Also, Deut, 1:17, 17:8, and 19:15. See also: The King vs.
The Chancellor, etc., 1 Strange 567, 567: "Besides, the objection
for want of notice can never be got over. The laws of God and man
both give the party an opportunity to make his defence, if he has
any. I remember to have heard it observed by a very learned man
upon such an occasion, that even God himself did not pass sentence
upon Adam, before he was called upon to make his defence. Adam
(says God) where art thou? Hast thou not eaten of the tree, whereof
I commanded thee that thou should not eat? And the same question
was put to Eve also." Loc. cit. Gellhorn and Byse, Administrative
Law, Fourth Edition, p. 711.

52 Annex H of the Petition, Rollo, pp. 32-33.

53 Cornejo vs. Gabriel, 41 Phil. 188, 193.

 54 Iloilo Ice and Cold Storage Company vs. Municipal Council of
Iloilo, 24 Phil. 471, 475; Sitchon vs. Aquino, 98 Phil. 458, 466; Halili
vs. Lacson, 98 Phil. 772, 775; also City of Manila vs. Garcia, L-
26053, February 21, 1967, 19 SCRA 413, 420.

55 Suntay vs. People, 101 Phil. 833, 838, citing Bauer vs. Acheson,
106 F. Supp. 445; Nathan vs. Dulles, 129 F. Supp. 951; and
Schachtman vs. Dulles, 225 F. 2d. 938.

56 Fahey vs. Mallonee, 91 L. ed. 2030; State Savings and

Commercial Bank vs. Anderson, 132 Pac. 755; Greater Delaware
Valley Fed. Savings & Loan Ass'n vs. Federal Home Bank Board 262
F. 2d. 371, 374.

57 Ewing vs. Mytinger & Casselberry, Inc., 94 L. ed.

1088; also North American Cold Storage Co. vs. Chicago, 53 L. ed.
195; Reduction Company vs. Sanitary Works, 199 U.S. 306352, 50
L, ed. 205; Adams vs. Milwaukee, 57 L.ed. 971; Balch vs. Glenn,
110 Pac. 67; Lemmon vs. Rumsey, 150 S.E. 725; Fleming vs.
Florida Citrus Exchange, 358 U.S. 153.

58 Standard Airlines vs. Civil Aeronautics Board, 177 F. 2d.

18; also State Board of Examiners vs. Weiner, 172 A. 2d. 661,
where it was held that a medical board may suspend a license
pending formal hearing.

59 R.A. Holman & Co. vs. SEC, 299 F. 2d. 127.

60 Ewing vs. Mytinger & Casselberry, Inc., supra, at p. 1094. See

also: People vs. Diamond, 135 N. E. 200, temporary seizure
pending judicial action; Mehlos vs. City of Milwaukee, 51 L.R.A. NS
1009, stopping a public dance without a hearing.

61 Gellhorn & Byse, Administrative Law, Cases and Comments, 4th

ed., p. 729.

62 Davis, Treatise on Administrative Law, Vol. I, Sec. 7.09, p.

447. See also: North American Cold Storage Co. vs. Chicago, 53 L.
ed. 195 (destruction of poultry, without prior hearing, after it was
found to be putrid upon inspection); Lawton vs. Steele, summary
 destruction of fishnets, 38 L. ed. 385; People ex rel. Cupcutt vs.
Board of Health, 35 N.E. 320; State vs. Scriber, 205 Pac. 2d. 149,
destruction, without advance hearing, of animals suffering from
infectious diseases; U.S. ex rel. Johnson vs. Shaughnessy 93 L. ed.
1054; Scalarides vs. Shaughnessy 180 F. 2d. 687, where a board of
special inquiry was held bound by the certification of the medical
board under a statute calling for medical examination of an alien for
mental defect; Wyant vs. Figy, 66 N.W. 2d. 240, destruction of
bees.

63 See: Rural Bank of Lucena, Inc. vs. Arca, L-21146, September

20, 1965.

64 A Call to Action, Manifesto II, Annex 9 of Answer.

65 Cf. American Civil Liberties Union-Academic Freedom and

Academic Responsibility, Emerson and Haber, Political and Civil
Rights in the United States, 2d. ed., p. 1006.

66 Clark Kerr, The New Involvement with Society, Dialogue, Vol. 1,

No. 1, pp. 34, 43.

67 George F. Kennan, Democracy and the Student Left, Dialogue,

Vol. 2, No. 2, p. 13.

68 Ibid.

69 Daniel D. Moynihan, The New Left and Liberal Values, Dialogue,

Vol. 2, No. 3, pp. 71, 77.

70 Baldwin, George D., Justice Fortas on Dissent and Civil

Disobedience, Wisconsin Law Review, No. 1 (1969), p. 221.

71 Steven Kelman, A Slightly Skeptical View, Dialogue, Vol. 1, No.

1, p. 48.

72 George F. Kennan, Democracy and Student Left, supra.

73 Annex 1, p. 2 of Answer.

74 Annex 1, p. 3 of Reply.
75 Section 6, Act 1870: "The Board of Regents shall ... (f) approve
the courses of study and rules of discipline drawn up by the
University Council ... ." Also, Section 9.

Chapter 2, Section 1, Article 19, University Code: "The Council shall

have the following powers: (a) To prescribe the courses of study
and rules of discipline, subject to the approval of the Board of
Regents."

76 Chapter 6, Section 2, Article 93, University Code: 'The Dean or

Director shall transmit, with his comment or recommendation, all
proposals affecting courses of study, instructions, scholarships, ...
as well as his own proposals on the aforesaid matters, to the
President for whatever action the latter may deem proper."

77 The Philippine Collegian, Thursday, July 31, 1969.

78 State vs. Yoakum 297 S.W. 2d. 635; Currie vs. Weld, 40 N.W.
561; Regan vs. Babcock 247 N.W. 12.

79 National Development Co. vs. Collector of Customs, L-19180,

October 31, 1963, 9 SCRA 429, 434; Alzate vs. Aldana, 107 Phil.
298, 301-302.

80 Gleason vs. University of Minnessota, 116 N.W. 650.

CASTRO, J., concurring:

1 This view was shared by the newspapers and columnists. E.g.,

"Editoryal," Taliba, July 27, 1969, p. 4; "UP Dean Stirs
Controversy," Manila Chronicle, July 26, 1969, p. 4, col. 2; Soc
Rodrigo, "Kuro-Kuro," Taliba, July 26, 1969; Valencia, "Over a Cup
of Coffee," Manila Times, July 25, 1969, pp. 4-A. 7-A, col. 1; id.,
July 26, 1969, p. 4-A, col. 1; Balein "Another One," Manila
Chronicle, July 26, 1969, p. 8, col. 1.

2 Cf. Noblejas v. Teehankee, L-28790, April 29, 1968, 23 SCRA

405.
3 Minutes of the 785th meeting of the U.P. Board of Regents, July
29, 1969, annex 21 of the respondents' answer.

4 Appendix A-3 to annex 18 of the respondents' answer.

5 Appendix A-4 to annex 18 of the respondents' answer.

6 Lacson v. Romero, 84 Phil. 740, 745-46 (1949).

7 Id., at 755.

8 Civil Service Act of 1959, sec. 32, as amended by Rep. Act 6040,
sec. 11, effective Aug. 4, 1969.

9 Malinski v. New York, 324 U.S. 401, 417 (1945) (Frankfurter, J.,
concurring).

10 Rochin v. California, 342 U.S. 165, 169 (1952).

11 E.g., Gray v. De Vera, L-23966, May 22, 1969, 28 SCRA 268;

Twining v. New Jersey, 211 U.S. 78 (1908). 12 See Rochin v.
California, supra, note 10 -at 173; Brown v. Mississippi, 297 U.S.
278, 285-6 (1936).

12 See Roching v. California, supra, note to 10 at 173; Brown v.

Mississipi, 279 U.S. 278,285-6 (1936).

13 A gifted scholar of American constitutional law, who himself is

the author of an influential classic, On Understanding the Supreme
Court (1949), considers Niebuhr's little volume more valuable for
education than "many books may times its size written by
constitutional lawyers about 'understanding the Supreme Court." '
P.A. Freund, Comment, Judicial Method in Due Process Inquiry, in
Government Under Law 355, 358 (A. Sutherland ed. 1956). 14
Niebuhr, The Children of Light and the Children of Darkness 3
(1944).

15 Id., at 3.

16 Id., at 85-86.
 17 "Who Is Responsible For Campus Violence?", Atlantic Magazine,
February 1969, p. 45; Newsweek, May 12, 1969, p. 71; see also pp.
24 and 29 of Memorandum for the Petitioner.

FERNANDO, J., concurring:

1 Cf. Morfe v. Mutuc, L-20387, 22 SCRA 424 (1968) citing Lacson v.

Romero, 84 Phil. 740 (1949) ; Lacson v. Roque, 92 Phil. 456
(1953); Meneses v. Lacson, 97 Phil. 857 (1955); Tabora v.
Montelibano, 98 Phil. 800 (1956); Unabia v. City Mayor, 99 Phil.
253 (1956); Cammayo v. Via 101 Phil. 1149 (1957); Pinero v.
Hechanova, L-22562, 18 SCRA 417 (1966); Abaya v. Subido, L-
25641, 18 SCRA 1034 (1966)..

2 Art. XII, Sec. 4, Constitution of the Philippines.

3 Republic Act No. 2260 as amended (1959).

4 Cf. Lacson v. Romero, 84 Phil. 740 (1949) ; De los Santos v.

Mallare, 87 Phil. 289 (1950) ; Lacson v. Roque, 92 Phil. 456 (1953);
Batung-Bakal v. National Dev. Co., 93 Phil. 182 (1953); Rodriguez
v. Del Rosario, 93 Phil. 1070 (1953); Mission v. Del Rosario, 94 Phil.
483 (1954); Palamine v. Zagado, 94 Phil. 494 (1954); Inocente v.
Ribo, 94 Phil. 652 (1954); Abella v. Rodriguez, 95 Phil. 289 (1954);
Uy v. Rodriguez, 95 Phil. 493 (1954); Gorospe v. De Veyra, 96 Phil.
545 (1955);Olegario v. Lacson, 97 Phil. 75 (1955); Quintos v.
Lacson, 97 Phil. 290 (1955); Meneses v. Lacson, 97 Phil. 857
(1955); Tabora V. Montelibano, 98 Phil. 800 (1956); Pulutan v.
Dizon, 99 Phil.168 (1956); Unabia v. City Mayor, 99 Phil. 253
(1956); Faunillan v. Del Rosario, 99 Phil. 758 (1956) ; Claravall v.
Paroan 100 Phil. 476 (1956); Senarillos v. Hermosisima 100 Phil.
501 (1956); Jose v. Lacson, L-10477, May 12, 1957; Cuyo v. City
Mayor, 101 Phil. 558 (1957); Cammayo v. Vina 101 Phil.1149
(1957); Cabo Kho v. Rodriguez, L-9032, Sept. 28, 1957; Briones v.
Osmena 104 Phil. 588 (1958); Diaz v. Amante, 104 Phil. 968
(1958); Mangubat v. Osmena L-12837, April 30, 1959; Baguio v.
Rodriguez, L-11078, May 27, 1959; Tan v. Gimenez, 107 Phil. 17
(1960); Subido v. Sarmiento, L-14981, May 23, 1960- Fernandez v.
Cuneta, L-14392, May 30, 1960; Board of Directors v. Alandy L-
15391, Oct. 31, 1980; Vito v. Lacson, L-16173, 3 SCRA 666 (1961);
 Gonzales v. Osmena L-15901, 3 SCRA 841 (1961); Dichoso v.
Valdepenas L-17448, 5 SCRA 1069 (1962); Corpus v. Cuaderno, L-
17860, 4 SCRA 749 (1962); Garcia v. Salcedo, L-19748, 6 SCRA 1
(1962) ; Fernandez v. Ledesma, L-18878, 7 SCRA 620 (1963);
Libarnes v. Executive Secretary, L-21505, 9 SCRA 261 (1963);
Jorge v. Mayor, L-21776, 10 SCRA 331 (1964); Diaz v. Raquid, L-
19158, 13 SCRA 339 (1965); Taala v. Legaspi L-22537, 13 SCRA
566 (1965); Corpus v. Cuaderno, L-23721, 13 SCRA 591 (1965);
City of Manila v. Subido, L-25835, 17 SCRA 231 (1966); Carino v.
ACCFA, L-19808, 18 SCRA 183 (1966); Piero v. Hechanova,
22562, 18 SCRA 417 (1966); Abaya v. Villegas, L-25641, 18 SCRA
1034 (1966); Ferrer v. Hechanova, L-24418, 19 SCRA 105 (1967);
Abellera v. City of Baguio, L-23957, 19 SCRA 600 (1967); Cruz v.
Primicias, L-28573, 23 SCRA 998 (1968); Pere v. Subido, L-26791,
23 SCRA 1074 (1968).

5 4 Wall. 2 (1866).

6 Home Building & Loan Association v. Blaisdell, 290 US 398, 425

(1934).

7 Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 US

287, 293 (1941).

BARREDO, J., concurring and dissenting:

1 As a matter of fact, it is perhaps even possible to hold that

because petitioner Sta. Maria accepted his appointment as Dean of
the College of Education for a term of five years together with the
qualification "unless sooner terminated", he is not entitled to invoke
security of tenure, just as "a civil service eligible who accepts a
position in a temporary capacity is not entitled to the protection
accorded by Republic Act No. 557 (Hortillosa vs. Ganzon, L-11169,
Jan. 30, 1959) nor to the protection of security of tenure in office
guaranteed by the Constitution. (Taboada) vs. Municipality of
Badian, et al. L-14604, May 31, 1961). The undisturbed unanimity
of the cases is that one who holds a temporary appointment has no
fixed tenure of office; his employment can be terminated any time
at the pleasure of the appointing power without need to show that it
is for cause. (Hojilla vs. Marino, et al., L-20574, Feb. 26, 1965;
Aguila vs. Castro, et al., L-23778, Dec. 24, 1965; Serrano, et a]. vs.
Nat. Science Dev. Board, et al., L-19349, Mareb 31, 1964; Cuado
and Vallecera vs. Gamus, et al., L-16782-83, May 30, 1963;
Taboada vs. Mun. of Badian, supra; Azuelo vs. Arnaldo, et al., L-
15144, May 26, 1969; Madrid vs. Auditor General, et al., L-13523,
May 31, 1960 (citing Mendez vs. Ganzon, et al., L-10483, April 12,
1957; University of the Philippines, et al. vs. Court of Industrial
Relations, et al., L-15416, April 28, 1960; Agapuyan vs. Ledesma,
L-10535, April 25,1957); Quitiquit vs. Villacorta, supra; Montero et
al. v. Castellanes, L-12694, June 30, 1960; Ferrer as. De Leon, L-
15076, August 29, 1960 (citingAustria vs. Amante, 79 Phil.780);
Villanosa, et al. vs. Alera, et al., supra, Elegida vs. Gacutara, supra;
Cuadra vs. Cordova, etc., L-11602, April 21, 1958, 54 O.G. 8063;
Castro vs. Solidum, L-7750, June 30, 1955)" (Jimenez vs. Guanzon,
January 22, 1968, 22 SCRA 227, 229, PHILD 1968-A, pages 220,
224).

I feel however, that the main position I have taken would suffice to
uphold the order in question on broader faundations of principle in
the law of the public administration.

G.R. No. L-1612 February 26, 1948

JORGE B. VARGAS, petitioner,

vs.
EMILIO RILLORAZA, JOSE BERNABE, MANUEL ESCUDERO, Judges of the People's Court,
and THE SOLICITOR GENERAL OF THE PHILIPPINES, respondents.

Claro M. Recto for petitioner.

Office of the Solicitor General Manuel Lim and Assistant Solicitor General Manuel P. Barcelona for
respondents.

HILADO, J.:

Counsel for the defense, in a motion dated August 28, 1947, assails the constitutionality of section
14 of the People's Court Act (Commonwealth Act No. 682) upon the following grounds:

(a) It provides for qualification of members of the Supreme Court, other than those provided
in section 6, Article VIII of the Philippine Constitution.
 (b) It authorizes the appointment of members of the Supreme Court who do not possess the
qualifications set forth in section 6, Article VIII, of the Philippine Constitution.

(c) It removes from office the members of the Supreme Court by means of a procedure other
than impeachment, contrary to Article IX, of the Philippine Constitution.

(d) It deprives the Commission on Appointments of Congress of its constitutional prerogative

to confirm or reject appointments to the Supreme Court.

(e) It creates two Supreme Courts.

(f) it impairs the rule making power of the Supreme Court, contrary to section 13, Article VIII
of the Philippine Constitution.

(g) It is a Bill of Attainder, for it punishes by disqualification members of the Supreme Court
who rendered said public service during the Japanese occupation.

(h) It denies equal protection of the laws.

(i) It is an ex post pacto legislation.

(j) It amends the Constitution by a procedure not sanctioned by Article XV, of the Philippine
Constitution.

(k) It destroys the independence of the Judiciary, and it permits the "packing" of the Supreme
Court in certain cases, either by Congress or by the President.

The Solicitor General, in behalf of the prosecution, opposes the motion and in support of his
opposition submits these propositions:

1. Power of Congress to enact section 14 of Commonwealth Act No. 682.

2. Section 14 of Commonwealth Act No. 682 does not and is not intended to provide an
additional qualification for members of the Supreme Court, much less does it amend section
6, Article VIII, of the Constitution of the Philippines.

3. Qualifications of members of the Supreme Court prescribed in section 6, Article VIII of the
Constitution apply to permanent "appointees" not to temporary "designees."

4. Section 5, Article VIII of the Constitution is not applicable to temporary designations under
section 14, Commonwealth Act No. 682.

5. It does not remove but merely disqualifies the members of the Supreme Court affected to
sit and vote in the particular class of cases therein mentioned.

6. It does not create an additional "Special Supreme Court."

7. It does not impair the rule-making power of the Supreme Court but merely supplements
the Rules of Court.
 8. It is not a bill of attainder.

9. It is not an ex post pacto law.

10. It does not deny equal protection of the laws either to the Justices of the Supreme Court
affected or the treason indicates concerned.

11. It does not amend any constitutional provision.

12. It does not destroy the independence of the judiciary or curtail the jurisdiction of the
Supreme Court.

This opposition is a reproduction by reference in the instant case of a similar pleading filed by the
Solicitor General in G.R. No. L-398, People vs. Sison, pursuant to the resolution of this Court in the
instant case dated October 30, 1947, granting the prayer of the Assistant Solicitor General that in the
consideration of petitioner's memorandum herein of September 27, 1947.

It will not be necessary for the purposes of this resolution to consider and decide all the legal
questions thus raised by these conflicting contentions of the parties.

For the purposes of the present resolution, the considerations presently to be set forth are deemed
insufficient. Article VIII, section 4, of the Constitution ordains that the Supreme Court shall be
composed of a Chief Justice and ten Associate Justices and may sit either in banc or in two divisions
unless otherwise provided by law. Section 5 of the same Article provides, inter alia, that the
members of the Supreme Court shall be appointed by the President with the consent of the
Commission on Appointments. Section 6 of the same Article stipulates that no person may be
appointed member of the Supreme Court unless he has been five years a citizen of the Philippines,
is at least 40 years of age, and has for 10 years or more been a judge of a court of record or
engaged in the practice of law in the Philippines. By virtue of section 9 of said Article, the members
of the Supreme Court, among other judicial officials, shall not hold office during good behavior, until
they reach, the age of 70 years, or become incapacitated, or become incapacitated to discharge the
duties of their office. Section 13 of the same Article VIII, inter alia, enunciates procedure thereby
repealed as statutes and are declared rules of court, subject to the power of the Supreme Court to
alter and modify the same, and to the power of the Congress to repeal, alter, or supplement them.
Art. XVI, section 2, provides that "all laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth, and thereafter they shall remain operative unless inconsistent
with this Constitution, until amended, altered, modified, or repealed by the Congress of the
Philippines ..."

Before the adoption of the Constitution, the law on disqualification of judges was contained in the
Code of Civil Procedure, sections 8 and 608. If said sections should be considered as parts of the
then existing adjective legislation, Article VIII, section 13, of the constitution repealed them along
with the others dealing with pleading, practice and procedure, as statutes, and declared them rules
of court, subject to the power of the Supreme Court to alter and modify the same, without prejudice
to the power of the Congress to repeal, alter or supplement them. In such case, when the
Constitution so provided in said section 13, it sanctioned as rules of court, among other provisions,
those in said sections 8 and 609 of the former Code of Civil Procedure concerning the
disqualification of judges. If said sections should be deemed as pertaining to then existing
substantive legislation, then they were continued as laws or statutes by the aforecited provision of
Article XVI, section 2.
By virtue either of Article VIII, section 13, or Article XVI, section 2, of the constitution, therefore, the
grounds for disqualifying judges, which had been held to include justices of the Supreme Court
(Jurado & Co, vs. Hongkong & Shanghai Banking Corporation, 1 Phil., 395) were those established
in sections 8 and 608 of the former Code of Civil Procedure. The Supreme Court later promulgated
the present Rules of Court wherein Rule 123 treats of the matter of disqualification of judicial
officers. The provisions of said rule have been taken from the above-cited sections 8 and 608 of the
same former Code of Civil Procedure (see also II Moran, Comments on the Rules of Court, 2d ed.,
pp. 779-782). By reason of the fact that the aforementioned provisions of the former Code of Civil
Procedure were continued by the constitution itself, either as rules of court or as laws or statutes
a point we need not now decide there can be no question of unconstitutionality or repugnancy of
said provisions to the constitution as regards the disqualification of judicial officers. In other words,
the framers deemed it fit, right and proper that said provisions shall continue to govern the
disqualification of judicial officers.

Such question of unconstitutionality or repugnancy to the constitution, however, arises in relation to

the disqualification of certain members of the Supreme Court provided for in section 14 of the
People's Court Act which says:

SEC. 14. Any Justice of the Supreme Court who held any office or position under the
Philippine Executive Commission or under the government called Philippine Republic may
not sit and vote in any case brought to that Court under section thirteen hereof in which the
accused is a person who held any office or position under either or both the Philippine
Executive Commission and the Philippine Republic or any branch, instrumentality and/or
agency thereof.

If, on account of such disqualification, or because of any of the grounds or disqualification of

judges, in Rule 126, section 1 of the Rules of Court, or on account of illness, absence of
temporary disability the requisite number of Justices necessary to constitute a quorum or to
render judgment in any case is not present, the President may designate such number of
Judges of First Instance, Judges-at-large of First Instance, or Cadastral Judges, having none
of the disqualifications set forth in said section one hereof, as may be necessary to sit
temporarily as Justice of said Court, in order to form a quorum or until a judgment in said
case is reached.

We propose to approach this question from the following angles: (a) whether or not the Congress
had power to ass to the pre-existing grounds of disqualification of a Justice of the Supreme Court,
that provided for in said section 14; (b) whether or not a person may act as a Justice of the Supreme
Court who has not been duly appointed by the President and confirmed by the Commission on
Appointments pursuant to the constitution , even only as a "designee"; and (c) whether or not by the
method of "designation" created by the aforecited section 14 a Judge of First Instance, Judge-at-
large of First Instance, or Cadastral Judge, designated by the President under the same section can
constitutionally "sit temporarily as Justice" of the Supreme Court by virtue thereof.

(a) We start with the principle, well known to the legal profession, that no act of the legislature
repugnant to the constitution can become law (In re Guaria, 24 Phil., 37, 45; Marbury vs. Madison,
1 Cranch 175). To discover whether the above quoted section 14 of the People's Court Act is
repugnant to the constitution, one of the best tests would be to compare the operation with the same
section if the latter were to be allowed to produce its effects. It is self evident that before the
enactment of the oft-quoted section of the People's Court Act, it was not only the power but the
bounden duty of all members of the Supreme Court to sit in judgment in all treason cases duly
brought or appealed to the Court. That power and that duty arise from the above cited sections of
Article VIII of the Constitution, namely, section 4, providing how the court shall be composed and
how it may sit, section 9, ordaining that they shall hold office during good behavior until they reach
the age of seventy years or become, incapacitated to discharge the duties of their office, and the
pertinent constitutional and statutory provisions bearing on the jurisdiction, powers and
responsibilities of the Supreme Court. Competently referring to the instant case, if section 14 of the
People's Court Act had not been inserted therein, there can be no question that each and every
member of this Court would have to sit in judgment in said case.

But if said section 14 were to be effective, such members of the Court "who held any office or
position under the Philippine Executive Commission or under the government called Philippine
Republic" would be disqualified from sitting and voting in the instant case, because the accused
herein is a person who likewise held an office or position at least under the Philippine Executive
Commission. In other words, what the constitution in this respect ordained as a power and a duty to
be exercised and fulfilled by said members of the People's Court Act would prohibit them from
exercising and fulfilling. What the constitution directs the section prohibits. A clearer case of
repugnancy of fundamental law can hardly be imagined.

For repugnancy to result it is not necessary that there should be an actual removal of the disqualified
Justice from his office for, as above demonstrated, were it not for the challenged section 14 there
would have been an uninterrupted continuity in the tenure of the displaced Justice and in his
exercise of the powers and fulfillment of the duties appertaining to his office, saving only proper
cases or disqualification under Rule 126. What matters here is not only that the Justice affected
continue to be a member of the Court and to enjoy the emoluments as well as to exercise the other
powers and fulfill the other duties of his office, but that he be left unhampered to exercise all the
powers and fulfill all the responsibilities of said office in all cases properly coming before his Court
under the constitution, again without prejudice to proper cases of disqualification under Rule 126.
Any statute enacted by the legislature which would impede him in this regard, in the words of this
Court in In re Guaria, supra, citing Marbury vs. Madison, supra, "simply can not become law."

It goes without saying that, whether the matter of disqualification of judicial officers belong to the
realm of adjective, or to that of substantive law, whatever modifications, change or innovation the
legislature may propose to introduce therein, must not in any way contravene the provisions of the
constitution, nor be repugnant to the genius of the governmental system established thereby. The
tripartite system, the mutual independence of the three departments in particular, the
independence of the judiciary , the scheme of checks and balances, are commonplaces in
democratic governments like this Republic. No legislation may be allowed which would destroy or
tend to destroy any of them.

Under Article VIII, section 2 (4) of the Constitution the Supreme Court may not be deprived of its
appellate jurisdiction, among others, over those criminal cases where the penalty may be death or
life imprisonment. Pursuant to Article VIII, sections 4, 5, 6, and 9 of the Constitution the jurisdiction of
the Supreme Court may only be exercised by the Chief Justice with the consent of the Commission
of Appointments, sitting in banc or in division, and in cases like those involving treason they must
sit in banc. If according to section 4 of said Article VIII, "the Supreme Court shall be composed" of
the Chief Justice and Associate Justices therein referred to, its jurisdiction can only be exercised by
it as thus composed. To disqualify any of these constitutional component members of the Court
particularly, as in the instant case, a majority of them is nothing short of pro tanto depriving the
Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. (Diehl vs. Crumb, 72 Okl., 108; 179 Pac., 44). And if that judge is
the one designated by the constitution to exercise the jurisdiction of his court, as is the case with the
Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of
the judicial power of the court itself. It would seem evident that if the Congress could disqualify
members of this Court to take part in the hearing and determination of certain collaboration cases it
could extend the disqualification to other cases. The question is not one of degree or
reasonableness. It affects the very heart of judicial independence.

Willoughby's United States Constitutional Law, under the topic of separation of powers, Volume 3,
pages 1622-1624, says:

Upon the other hand, as we shall see, the courts have not hesitated to protect their own
independence from legislative control, not simply be refusing to give effect to retroactive
declaratory statutes, or to acts attempting the revision or reversal of judicial determination,
but by refusing themselves to entertain jurisdiction in cases in which they have not been
given the power to enforce their decrees by their own writs of execution. Thus, as already
mentioned, they have refused to act where their decisions have been subject to legislative or
administrative revisions. Finally, even where the extent of their jurisdiction, as to both parties
litigant and subject-matter, has been subject to legislative control, the courts have not
permitted themselves to be deprived of the power necessary for maintaining the dignity, the
orderly course of their procedure, and the effectiveness of their writs.

In order that the court may perform its judicial functions with dignity and effectiveness, it is
necessary that it should possess certain powers. Among these is the right to issue certain
writs, called extra-ordinary writs, such as mandamus, injunction, certiorari, prohibition, etc.
and especially, to punish for contempt any disobedience to its orders. The possession of
these powers the courts have jealously guarded, and in accordance with the constitutional
doctrine of the separation and independence of the three departments of government, have
held, and undoubtedly will continue to hold, invalid any attempt on the part of the legislature
to deprive them by statute of any power the exercise of which they deem essential to the
proper performance of their judicial functions. The extent of their jurisdiction, they argue, may
be more or less within legislative control, but the possession of powers for the efficient
exercise of that jurisdiction, whether statutory or constitutional, which they do possess, they
cannot be deprived of.

It has already been pointed out that the jurisdiction of the inferior Federal courts and the
appellate jurisdiction of the Supreme Court are wholly within the control of Congress,
depending as they do upon statutory grant. It has, however, been argued that while the
extent of this jurisdiction is thus within the control of the legislature, that body may not control
the manner in which the jurisdiction which is granted shall be exercised, at least to the extent
of denying to the courts the authority to issue writs and take other judicial action necessary
for the proper and effective execution of their functions. In other words, the argument is, that
while jurisdiction is obtained by congressional grant, judicial power, when once a court is
established and given a jurisdiction, at once attaches by direct force of the Constitution.

This position was especially argued by Senator Knox, Spooner and Culberson and contested
by Senator Bailey during the debate upon the Repburn Railway Rate Bill of 1906. The point
at issue was the constitutionality of the amendment offered by Senator Bailey providing that
no rate or charge, regulation or practice, prescribed by the Interstate Commerce
Commission, should be set aside or suspended by any preliminary or interlocutory decree or
order of a circuit court.

This position would seem to be well taken, and would apply to attempts upon the part of
Congress to specify the classes of statutes whose constitutionality may be questioned by the
courts, or to declare the number of justices of the Supreme Court who will be required to
concur in order to render a judgment declaring the unconstitutionality of an act of Congress.
In State vs. Morrill (16 Ark., 384), the Supreme Court of Arkansas declared:

The legislature may regulate the exercise of, but cannot abridge, the express or necessarily
implied powers granted to this court by the Constitution. If it could, it might encroach upon
both the judicial and executive departments, and draw to itself all the powers of government;
and thereby destroy that admirable system of checks and balances to be found in the
organic framework of both the federal and state institutions, and a favorite theory in the
government of the American people . . . .

The members affected by the prohibition have heretofore disqualified themselves, partly because
they presumed the statute valid and partly because they would rather have no hand in the revision of
the appeals, for the purpose of avoiding even a breath of suspicion as to the impartiality of their
actuations. However, realizing upon a thorough analysis of the matter by counsel on both sides, the
far-reaching implications which the precedent might authorize, imperilling the independence of one
coordinate branch of the Government, they finally cast aside all reluctance to consider the point, and
came out with practical unanimity to condemn any legislation which impinges or might impinge upon
the fundamental independents powers of the judicature.

Some of them have no quarrel with legislative authority to enumerate instances in which judges may
not sit. They would even concede that. But, they say, let the rules be promulgated before the event
happens or litigation arises. To promulgate them after, would enable the Congress in specific
situations to order that Judge X shall not decide the controversy between Y and Z or that Justice M
shall not sit in the appeal of P.S. and so on ad infinitum, and thus decisively influence the decision,
for or against one party litigant. Such legislative power might thus be wielded to interfere with the
functions of the judiciary, depriving Philippine citizens of their right of impartial awards from judges
selected without any reference to the parties or interest to be affected. Unnecessary to prove or
impute sinister motives behind the statutory disqualification. Enough that recognition of the power
might give way to the operation of unworthy combinations or oppressive designs.

Let it not be argued that the Court is the same, only the membership being different. Because Article
VIII, sections 4 and 5, of the Constitution do not admit any composition of the Supreme Court other
than the Chief Justice and Associate Justices therein mentioned appointed as therein provided. And
the infringement is enhanced and aggravated where a majority of the members of the Court as in
this case are replaced by judges of first instance. It is distinctly another Supreme Court in
addition to this. And the constitution provides for only oneSupreme Court.

From all that has been said above it results that the ground for disqualification added by section 14
of Commonwealth Act No. 682 to those already existing at the time of the adoption of the
Constitution and continued by it is not only arbitrary and irrational but positively violative of the
organic law.

(b) In the face of the constitutional requirement (Art. VIII, section 5) that the members of the
Supreme Court should be appointed by the President with the consent of the Commission on
Appointments, we are of the opinion that no person not so appointed may act as Justice of the
Supreme Court and that the "designation" authorized in section 14 of the People's Court Act to be
made by the President of any Judge of First Instance, Judge-at-large of First Instance or cadastral
Judge can not possibly be a compliance with the provision requiring that appointment. An additional
disqualifying circumstance of the "designee" is the lack of confirmation by or consent of the
Commission on Appointments. Without intending the least reflection on the ability, learning, and
integrity of any such "designee", we are merely construing and applying the fundamental law of the
land. A Judge of First Instance, Judge-at-large of First Instance or Cadastral Judge, under section
149 of the Revised Administrative Code, need not be at least forty years of age, nor have more than
ten years or more been a judge of a court of record or engaged in the practice of law in the
Philippines (as required by section 6 of Article VIII of the Constitution), because under said section
he need only have practiced law for a period of not less than five years or have held during a like
period within the Philippines an office requiring a lawyer's diploma. So that it may happen that a
"designee" under section 14 of the People's Court Act, sitting as a substitute Justice of the Supreme
Court in particular collaboration cases, and participating therein in the deliberations and functions of
the Supreme Court, like any regular Justice thereof, does not possess the required constitutional
qualifications of a regular member of said Court. Here again is another point of repugnancy between
the challenged section and the constitution. And if we consider the actual fact that only four of the
present ten Justices of this Court are not adversely affected by the disqualification established in
section 14 of the People's Court Act, we see that the "designees" constitute a majority when sitting
with said four Justices, giving rise to the result that, if the composed by them all should be
considered as the Supreme Court, it would be composed by four members appointed and confirmed
pursuant to sections 4 and 5 of Article VIII of the Constitution and six who have not been so
appointed and confirmed. The situation would not be helped any by saying that such composition of
the Court is only temporary, for no temporary composition of the Supreme Court is authorized by the
constitution. This tribunal, as established under the organic law, is one of the permanent institutions
of the government. The clause "unless otherwise provided by law" found in said section 4 can not be
construed to authorize any legislation which would alter the composition of the Supreme Court, as
determined by the Constitution, for however brief a time as may be imagined. In principle, what really
matters is not the length or shortness of the constitutional composition of the Court, but the very
permanence an unalterability of that composition so long as the constitution which ordains it remains
permanent and unaltered. We are furthermore of opinion that said clause refers to the number of
Justices who were to compose the Court upon its initial organization under the Commonwealth, and
the manner of its sitting; that is, that the Legislature, when providing for the initial organization of the
Supreme Court under the Commonwealth, was authorized to fix a different number of Justices than
eleven, and determine the manner of the Court's sitting differently from that established in section 4
of Article VIII of the Constitution, but it was and is not empowered to alter the qualifications of the
Justices and the mode of their appointment, which are matters governed by sections 5 and 6 of said
Article VIII wherein the clause "unless otherwise provided by law" does not ever exist, nor the
provision on who shall be the component members of the Court. Such a legislation was enacted in
the form of Commonwealth Acts Nos. 3 and 259, the pertinent provisions of which amended sections
133 and 134 of the Revised Administrative Code. But after liberation, the Chief Executive, by
Executive Order No. 40 (41 Off. Gaz., 187) amended sections 133 and 134 of the Revised
Administrative Code, as amended by section section 2 of Commonwealth Act No. 3 and sections 1
and 2 of Commonwealth Act No. 259, and repealed all acts or parts of acts inconsistent with the
provisions of said executive order; and the same Chief Executive, by Executive Order No. 86 (42
Off. Gaz., 15) further amended section 133 of the Revised Administrative Code, as thus previously
amended, also repealing all acts or parts of acts inconsistent therewith. Both by virtue of Executive
Order no. 40 and Executive Order No. 86, the number of Justices of the Supreme Court, as originally
fixed at eleven by the Constitution, was restored.

(c) However temporary or brief may be the action or participation of a judge designated under
section 14 of the People's Court Act in a collaboration case of the class therein defined, there is no
escaping the fact that he would be participating in the deliberations and acts of the Supreme Court,
as the appellate tribunal in such a case, and if allowed to do so, his vote would count as much as
that of any regular Justice of the Court. There can be no doubt that the Chief Justice and Associate
Justices required by section 4 of Article VIII of the Constitution to compose the Supreme Court
indeed, a "temporary member" thereof would be a misnomer, implying a position not contemplated
by the constitution. Section 5 of the same Article VIII, in requiring the members of the Supreme
Court to be appointed by the President with the consent of the Commission on Appointment, makes
it plainly indubitable that the Chief Justice and Associate Justices who are to compose the Court and
sit therein under section 4, have to be thus appointed and confirmed.
As already adverted to, a mere designation under section 14 of the People's Court Act does not
satisfy the Constitutional requirement of appointment, with the additional circumstance that as to
such designation, the Commission on Appointments is entirely dispensed with. We find absolutely
nothing in the context which may soundly be construed as authorizing, merely by
legislation, any change in the constitutional composition of the Supreme Court, or the performance
of its functions by any but its constitutional members. On the other hand, we have to go by the
cardinal rule that "usually provisions of a constitution are mandatory rather than directory, and
mandatory provisions are binding on all department of the government." (16 C.J.S., 120).

The main reason for this rule is that in the Constitutions the sovereign itself speaks and is
laying down rules which, for the time at least, are to control alike the government and the
governed. It is an instrument of a solemn and permanent character, laying down fundamental
maxims, and, ordinarily, is not supposed to concern itself with mere rules or order in
unessential matters (Baker vs. Moorhead, 174 N.W., 430, 431; 103 Neb. m, 811);

Court is loath to say that any language of the constitution is merely directory. Scopes vs.
State, 289 S.W., 363, 366; 154 Tenn., 105; 53 A.L.R., 821). (Footnote 93, C.J.S., 120.)

Under sections 4 and 5 of Article VIII of the Constitution, it is clear that the framers intended the
Supreme Court to function through the members who are therein defined: and by section 6 they
determined who may be appointed such members. This naturally excludes the intervention of any
person or official who is not a member of the Court in the performance of its functions; and it is self-
evident that the "designees" spoken of in section 14 of the People's Court Act can not be such
members in view of the fact that they have not been appointed and confirmed as such pursuant to
said sections 5 and 6.

Hence, we do not see the way clear to the proposition that the "designees" in such a case can
constitutionally "sit temporarily as Justices" of the Supreme Court.

By an act of the United States Congress dated February 6, 1905, it was provided in part as follows:

Temporary judges of the Supreme Court; ... Whenever by reason of temporary disability of
any judge of the Supreme Court or by reason of vacancies occurring therein, a quorum of the
court shall not be present for business the Governor General of the Philippine Islands is
authorized to designate a judge or judges of the court of First Instance in the islands to sit
and act temporarily as judge or judges of the Supreme Court in order to constitute a quorum
of said Supreme Court for business. . . . .

As part of the membership of the Court believes that this provision is still in force by virtue of Article
XVI, section 2, of the Constitution, and should still be applied to cases of "temporary disability ... or
vacancies occurring" and preventing a quorum; while the other members are not prepared to
subscribe to the same view, for the reason that the designation" thereby authorized would be
"inconsistent with this constitution," in the word of the cited section, the same as the "designation"
authorized by section 14 of the People's Court Act. Anyway, we need not decide the point now.

This decision has been prepared before this date, and is being promulgated before the Court acts
upon the Solicitor General's motion to dismiss dates February 17, 1948, for the rulings contained
herein.

For the foregoing consideration, it is declared and ordered: (a) that section 14 of the People's Court
Act is unconstitutional in the respects specified in the body of this resolution; and (b) that this case
be dealt with henceforward in pursuance of and in harmony with this resolution. So ordered.
Moran, C.J., Paras, Pablo, Bengzon, and Tuason, JJ., concur.

Separate Opinions

MORAN, C.J., concurring:

I agree with the majority decision principally upon the ground that section 14 of the People's Court
Act No. 682 is so unfair and unjustified that it not only unjustly deprives a majority of the members of
this Court of their membership in the cognizance of treason cases, but it also provides for substitutes
who may not have the qualifications of Justices of the Supreme Court, thus destroying the quality
and integrity of the Court's composition as is provided by the Constitution. Judicial independence as
intended by the constitution is greatly affected by this legal provision.

PERFECTO, J.:

We concur in the above resolution penned by Mr. Justice Hilado, our whole position being stated in
our separate concurring opinion.

BRIONES, J.:

Estoy conforme con la parte dispositiva y me reservo el redactar un dictamen concurrente separado.

PERFECTO, J., concurring:

The constitutionality of section 14 of Commonwealth Act No. 682, creating the People's Court, is
again in issue.

As stated in the majority decision, penned by Mr. Justice Hilado, the following are the eleven
grounds upon which petitioner challenges the validity of said section:

(a) It provides for qualification of members of the Supreme Court, other than those provided
in section 6, Article VIII of the Philippine Constitution.

(b) It authorizes the appointment of members of the Supreme Court who do not possess the
qualifications set forth in section 6, Article VIII, of the Philippine Constitution.

(c) It removes from office the members of the Supreme Court by means of a procedure other
than impeachment, contrary to Article IX, of the Philippine Constitution.
 (d) It deprives the Commission on Appointments of Congress of its constitutional prerogative
to confirm or reject appointments to the Supreme Court.

(e) It creates two Supreme Courts.

(f) It impairs the rule making power of the Supreme Court, contrary to section 13, Article VIII
of the Philippine Constitution.

(g) It is a Bill of Attainder, for it punishes by disqualification members of the Supreme Court
who rendered said public service during the Japanese occupation.

(h) It denies equal protection of the laws.

(i) It is an ex post facto legislation.

(j) It amends the Constitution by a procedure not sanctioned by Article XV, of the Philippine
Constitution.

(k) It destroys the independence of the Judiciary, and it permits the "packing" of the Supreme
Court in certain cases, either by Congress or by the President.

We fully concur in all the reasonings of the decision showing the conflict between the section in
controversy and the provisions of the Constitution and, therefore, in the conclusion that said section
is null and void ab initio, with the same effect as if it had never been enacted. We are not, however,
in a position to agree with the pronouncements that may imply that the Constitution has confirmed
the provisions of the Code of Civil Procedure regarding disqualifications of members of the judiciary.
When the Convention conferred upon the Supreme Court, the rule-making power, as provided in
section 13 of Article VIII, it did not have in mind the idea of considering the specific provision of law
then existing on pleading, practice, and procedure in courts of justice, but only of repealing them as
statutory provisions and turning them into judicial rules, so that the Supreme Court may alter and
modify them. The conversion had been necessary, because the power to change statutory
provisions belongs exclusively to the legislative department. Judicial disqualification is a matter of
substantive law and, therefore, beyond the rule-making power of the Supreme Court. Otherwise, it
will also be subject to legislation, as Congress is expressly empowered to legislate upon judicial
rules adopted by the Supreme Court. Congress can not legislate on judicial disqualification without
jeopardizing judicial independence. Judicial qualifications and disqualification are matters basically
constitutional. They go to the very roots and existence of the judicial system established by our
people. The present provisions of the Constitution are amply satisfactory. If the good behavior, age
limit and incapacity to discharge the duties of the office therein mentioned are not satisfactory,
correction can be effected only by constitutional amendment. We deem it unnecessary to elaborate
now on the propositions above enunciated.

The eleven grounds advanced by petitioner to assail the constitutionality of section 14 of

Commonwealth Act No. 682 are all well taken, as we have already shown in our published two
written opinions in Rama vs. Misa, L-263, dated February 27, and April 1, 1946.

In the first one we said:

Since we began to enjoy the privilege of sitting in this Court, one of the highest positions
within the gift of our people, for less than a year, this is the second time we are compelled to
come out to fight for judicial independence as one of the political values that should be
treasured permanently, if our courts must forever be the unconquerable bulwark of the right
and the privileges of the individuals and the principles of justice, liberty, and democracy. The
first occasion was when we wrote our concurring opinion on September 6, 1945, in the case
of Raquiza vs. Bradford, L-44.

The respondent's motion, upon which the majority resolution was adopted, invokes the
provisions of section 14 of Commonwealth Act No. 682, creating the People's Court,
disqualifying any justice who held any office or position under the Philippine Executive
Commission or under the government called Philippine Republic, during the enemy
occupation, to sit and vote in any case in which the accused held any office or position under
said governments or any branch, instrumentality, and/or agency thereof.

We are of opinion that said section, so far as it provides fro said disqualification, is null and
void, and without effect, because:

(1) It is utterly wrong as a matter of principle;

(2) It violates the constitution of the Philippines; and

(3) It destroys the judicial independence of the Supreme Court.

Whatever the reason Congress had in mind in providing for said disqualification, it is
important to remember that respondents have made of record that their motion "is not
inspired by any lack of confidence in the impartiality, character, and integrity of the honorable
members of this Court affected by the relief sought," and that there is no basis to say the
contrary.

We must also bear in mind that in France, Mongibaux, the former Chief Justice of the
Supreme Court under the Vichy government, was the one who tried, judged, and sentences
Marshal Petain. No one can cast any doubt as to his impartiality, character and integrity No
one disputed the wisdom and justice of his decision, condemning as guilty of collaboration
the head of the Vichy government.

Article VIII, section 6, of the Constitution, provides for he qualifications of a person who may
be appointed member of the Supreme Court. Section 14 of Act 682, in effect, in the cases
mentioned therein, amends the Constitution by adding a new qualification, namely, that the
member had not held any office or position under the Philippine Executive Commission or
the so-called Philippine Republic. Congress, according to Article XV of the Constitution, may
propose amendments to it, the proposal to be approved by the people, but it cannot amend
it.

Article VIII, section 8, of the Constitution, provides that Congress "shall prescribe the
qualifications of judges of inferior courts." We may construe the provision as also authorizing
Congress to prescribe the 'disqualifications' of said judges. But the very fact that such
provisions exists in the Constitution regarding judges of inferior courts, but not of the
Supreme Court, must be interpreted with the effect that Congress is without power to
prescribe disqualifications for said justices. Inclusio unius est exclusio alterius.

Article VIII, section 9, of the Constitution, provides that the members of the Supreme Court
"shall hold office during good behavior, until they reach the age of seventy years, or become
incapacitated to discharge the duties of their office." But the provision is completely silent as
to how and by whom and by whom said members may be deprived of their right to hold office
in case they become incapacitated to discharge the duties thereof, reach the age of seventy,
or failed to behave accordingly. Shall the power be exercised by the Supreme Court itself, or
shall it be left to the conscience of the affected justice? Quaere. certainly, they cannot be
exercised by legislation?

It seems that the good behavior clause of Article VIII, section 9, must be jointly considered
with Article IX, section 1, where the acts as against good behavior under Article VIII, section
9, should be considered specified. In such case, Article IX provides for the procedure for
removal by impeachment. The procedure provided in Article IX cannot be substituted by
legislation without violating the fundamental law of the land.

With all the admiration and profound respect we entertain for Franklin Delano Roosevelt,
who possibly will be rated as the greatest president of the United States of America, and,
undoubtedly, as one of the highest apostles of freedom, democracy, and humanity, we must
admit that he committed a great blunder when he proposed to pack the United States
Supreme Court with additional new and younger members. All the believers in democratic
institutions are glad that the proposal met defeat, the most crushing and resounding one
suffered in Congress by President Roosevelt.

The wrong about to be committed by said proposal was one by addition. The wrong
committed by section 14 of Act 682 is by subtraction. Whether by addition or subtraction, the
principle is essentially wrong, unjust, subversive, destructive of the principle of separation of
powers. It will, ultimately, turn the Supreme Court, not as it is and should be, not as one of
the dignified powers of government, but as a mere appendix of Congress, subject to the
whims of the leaders of the same.

With all our respect and regard for Congress, if we have to be realistic, we should not close
our eyes to the logical pernicious consequences of the principle, if we sanction it, that would
allow Congress to provide for disqualifications on any ground, no matter what the wisdom or
nonsense of it, of Justices of the Supreme Court. If we recognize that power in Congress, it
will make of the Supreme Court a mere tool in the hands of the leaders of the legislative
power who may, by legislation, disqualify one or more members of the Supreme Court today,
for one reason; tomorrow, upon different grounds; and the day after tomorrow, on further
grounds, until the members affected are, in effect, deprived totally of their functions and
office, until the Supreme Court is altogether crippled or totally abolished.

We refuse absolutely to sanction or to take part in such a governmental framework where the
highest tribunal of the land will not be more than a mocking shadow of judicial power.

No power in government should try, directly or indirectly, to control the manner by which the
Supreme Court and its members should administer justice. Providing for disqualifications by
law is an attempt to control the Supreme Court and its members. Such attempt must be
rejected with energy. Once the members of this Supreme Court have been appointed, their
appointments have been confirmed by the Commission on Appointments, and they have
taken their oath of office, the only power that can control their acts is the power of their own
conscience. People and government should depend on them with implicit faith and
confidence. Over their conscience will always loom, as an eternal guiding star, the object of
their functions: justice, with all its overpowering moral and divine force.

According to Cicero "in justice the brilliance of virtue is greater, and from her they receive
their name just men" (De Offic. 1., 1, tit. de Justitia); and Saint Thomas Aquinas maintains
that "justice excels all other moral virtues" and "it is the most excellent among all other
virtues" (Summa Theologica, Second Part, Cuestion XVIII, Article XII.)

Although the psuedo-progressives of new pattern, those intellectual renegades who spurn
the wisdom of the ages, may not relish it, we have to quote from Aristotle that "justice seems
to be the most excellent virtue, and that neither the afternoon star nor the morning star
inspires more admiration than her" (Ethics, 1. 5. c. 1), as "the greatest virtue as necessarily
those which are more useful to others, because virtue is a beneficient faculty" (Rhetor. 1, 1,
c.9). After all, those who look farther in the past will see better the future. Who can pull the
farther back the string of a bow, he will send the arrow farther. Robert Maynard Hutchins,
President of the University of Chicago, one of the institutions which greatly contributed to the
development of the atomic bomb, in the 1945 edition of his book "The High Learning in
America' could not avoid invoking several times the authority of the Stagirite. The Pleiad of
great physicists who are responsible for ushering of the Atomic Energy Era, the most
revolutionary in the history of humanity Becquerel, Curie, Hertz, Einstein, Bohr, Smyth,
Rutherford, Meitner, Oppenheimer, and many others themselves admitted that the ideas
of Democritus and Aristotle on matter, on energy, on the elements of universe, expressed
centuries before Christ, the philosopher's stone of the medieval alchemists, and the ideas of
Galileo and Newton are direct progenitors and inspirers of the present concepts on matter
and energy as the different expressions of the same thing and which permitted the discovery
of that wonderful microcosmos where the constellations of electrons, protons, neutrons,
deuterons, photons, alpha, beta, and gamma rays, and other radiant particles in play,
offering to man the mastery it never had on physical nature with the harnessing of the basic
forces of universe.

There are thoughts and ideas bequeathed to us by great thinkers which remain fresh and
young through the ages and centuries, like the flesh of the wooly mammoth, buried in
Russian tundras, which today can still be eaten, although the beasts died in the pre-historic
darkness of remote antiquity. Those are the thoughts and ideas insufflated with the vitality of
eternal truth. They spring from the minds of the geniuses with which Nature, once in a while,
blesses certain epochs, to be the intellectual leaders of mankind for all time.

The ignorants and retrogrades will never understand it; but it is a fact that in the summit of
his glorious career, Justice Holmes, the greatest Judge of modern times, continued reading
Aristotle. To free themselves from the sorrows they feel with the surrounding market of
vulgarity, where pygmys and riffraffs dominate, great minds seek enjoyment in the company
of their kind. Eagles will not be happy in the society of flies and mosquitoes. That explains
the calibre of the friends Rizal had in Europe.

All these may sound esoteric to the unfortunate class of morons or mental degenerates. We
cannot help it. Our words are addressed to persons with normal understanding.

We wish to make it of record that, as a matter of fact, some of the members who disqualified
themselves had some doubts on the validity of any law, passed after their appointment to
this Court, which under the guise of establishing disqualifications has the effect of either
temporarily removing them from office or changing the composition of the Supreme Court,
when called upon to decide those issues reserved to it by the Constitution. But they chose
not to inquire further into the matter, what with their opinion that under section 14
disqualification was optional with them in court, and the prima facie presumption in favor of
the law's validity.
 We, therefore, dissent from the majority's resolution. We maintain that the affected members
are duty bound to ignore section 14 of Act 682 and should proceed to continue exercising
their constitutional functions in the present case.

The above was written in relation to a resolution adopted by the Supreme Court with the members
who decided to disqualify themselves taking part.

The second opinion was written in relation with a resolution adopted by a body composed of a
minority of Justices of the Supreme Court and a majority of judges designated by the President of
the Philippines to sit in the Supreme Court. We stated therein:

A motion was filed by petitioner impugning the organization and constitution of the Supreme Court
as presently constituted for purposes of taking cognizance, trying and deciding the present case,
raising specially the issue as to the validity, under the Constitution, of the designation of five judges
of courts of first instance to sit as acting justices of the Supreme Court in substitution of the Chief
Justice and four Justices who, upon motion of the party respondent and in compliance with the first
paragraph of section 14 Act 682, creating the People's Court, inhibited themselves in this case.

The motion was filed on Monday, April 1, 1946, just before the hearing of this case on the merits.
After a few minutes deliberation, the majority resolved to deny the motion and, consequently, to
reject the point of constitutional law raised in said motion.

The question being of far-reaching importance and having been raised for the first time, we were of
the opinion that it requires deep thinking and study, matured deliberation, and ample and long
discussion before this Supreme Court could do full justice in disposing of so important question. For
said purposes the few minutes employed in considering and deciding the question were, to our mind
absolutely inadequate. A few hours would even be also inadequate. Days, with full opportunity for
complete rest in the intervening nights, are imperatively needed. But the majority, overruling our
position, unsupported by all the members of this court, except ourselves, thought otherwise and
decided the question on a lightning-like fashion, deciding, furthermore, to verbally promulgate the
resolution at the beginning of the hearing, without waiting for the resolution to be formally committed
in writing as naturally must be expected from a court of record par excellence as no other can be
than the highest tribunal of the land.

We wanted to have an opportunity of studying further the question, of thinking more on it and, at
least, for a solitary self discussion, in lieu of a deliberation with our brethren assembled in a
collective body, the benefits of which we were deprived, we announced at the hearing, when the
resolution was verbally promulgated, that we are reserving our vote until the resolution could be
reduced to writing.

Now we are ready to cast our vote with full consciousness, for the upholding of the constitutional
question raised by petitioner, and in support of that vote we are writing this opinion.

Our position is that the designation of the five judges of first instance to sit in this Supreme Court as
acting Justices in place of the Chief Justice and four Justices who inhibited themselves is, under the
Constitution, null and void; that said judges can not sit in this Supreme Court and take part in its
deliberations and decision in this case without violating the Constitution; and that all actions of this
court taken with the participation of said temporary Justices are and must be declared null and void
and without effect. There are several grounds in support of this position.

I
Section 1 of Article VIII of the Constitution provides:

"The Judicial power shall be vested in one Supreme Court and in such inferior courts as may
be established by law."

This provision makes the Supreme Court a constitutional organism, whose existence,
constitution and organization are provided in the fundamental law of the land, and said
matter cannot be the subject of laws enacted by the legislative power, unless expressly so
authorized by the Constitution itself.

Otherwise, Congress will be in a position to change the composition and organization of the
Supreme Court by actually amending the corresponding constitutional provisions, and such
thing cannot be done without violating the fundamental law, as any amendment of the same
to take effect must be submitted to the sanction and approval of people represented by the
body of the national electorate.

The provisions of section 14 of Act 682 regarding disqualification of members of the

Supreme Court and for the designation of judges who may take their place in this Court have
the effect of amending the Constitution.

In a former dissenting opinion in this case we have already had the opportunity of expressing
our opinion to the effect that said disqualification provision is null and void, being violative of
the constitution.

As a corollary, it is unavoidable to declare also unconstitutional the provision which

authorizes the President of the Philippines to designate judges of inferior courts to sit in this
Tribunal in the place of disqualified Justices, it appearing that there is nothing in the
Constitution authorizing Congress or any legislative body to enact a law providing for said
designation.

II

Section 5 of Article VIII of the Constitution provides:

"The members of the Supreme Court and all judges of inferior courts shall be
appointed by the President with the consent of the Commission on Appointments."

This provision clearly limits the procedure by which positions in the Supreme Court may be
filled up.

Under the provision, the members of the Supreme Court must be appointed by the President
of the Philippines, and the appointment must be with the consent of the Commission on
Appointments.

Section 5 of Article VIII of the Constitution can in no way be interpreted as authorizing a

judge of an inferior court to sit in this Supreme Court, not by appointment by the President of
the Philippines and with the consent of the Commission on Appointment, but by just a mere
designation made by the President and without even the concurrence of the Commission on
Appointments.
The designation of the five judges of first instance to sit in this Supreme Court constitutes a
clear and flagrant violation of the constitutional provision which requires that the members of
the Supreme Court "shall be appointed by the President with the consent of the Commission
on Appointments."

The provision in the second paragraph of section 14 of Act 682, in authorizing the
designation of judges of first instance to sit in this Supreme Court, in fact, grants the
President an arbitrary power which the framers of the Constitution would never think of
granting him.

Said provisions, besides granting the President an arbitrary power, has the effect of
depriving the Commission on Appointments of it Constitutional right to consent or not to
consent to the appointment of the members of the Supreme Court.

The framers of the Constitution considered it wise to have the appointment of members of
the Supreme Court effected in such a way as will guarantee the expression of the will of the
people, considering the tremendous judicial powers which the Supreme Court exercises
cannot but affect vitally the well-being and happiness of all the people of the Philippines.

So they granted the power of appointment to the President, who is elected at large by the
whole country. But to establish further guarantees that the appointments count with the
whole-hearted approval of the people, the authors of the Constitution provided that the
appointments be approved by the Commission on Appointments, which is composed of one-
half of the members of the Senate, including the President thereof, and of a substantial
number of members of the House of Representatives. In this way, the members of the
Supreme Court are appointed with the joint action of the two powers of government, more
directly in contact with the people, the executive and the legislative.

The designation of judges of first instance to sit in this Supreme Court is dependent only on
the action of a single individual, action that is of temporary nature and which may be
changes, revoked, or reversed at any time, under any circumstance, without limitation except
the psychological limitations of the powers of his imagination.

III

Section 6 of Article VIII of the Constitution provides:

"No person may be appointed member of the Supreme Court unless he has been
five years a citizen of the Philippines."

On the other side, section 8 of Article VIII of the Constitution provides that:

"Congress shall prescribe the qualifications of judges of inferior courts, but no person
may be appointed judge of any such courts unless he is a citizen of the Philippines."

As a member of the Constitutional Convention and of the Committee on Style thereof which
drafted the final text of the Constitution, we are in a position to state categorically that the
Constitutional Convention considered it a vital guarantee that no member of the Supreme
Court could be appointed "unless he has been five years a citizen of the Philippines",
because we would not trust the important functions of this Supreme Court in the hands of
men who have not enough time to learn, to think, and to feel as a born Filipino citizen should.
We consider this condition necessary and vital with regards to the highest tribunal of the
land, whose decision shall usually be the last word in the administration of justice.

We did not deem it necessary to require the same condition with respect to judges of court
inferior to the Supreme Court, so we provided that it was not enough that the appointee be "a
citizen of the Philippines", no matter whether he be a one-year or one-day Filipino citizen.

Therefor, a one-day Filipino citizen may become a judge of first instance. If we have to abide
by the provision of Act 682 herein in question, such one-day Filipino citizen may be
designated by the President to sit in the Supreme Court. That is while the Constitution
requires that a member of the Supreme Court must be, at least, "five years a citizen of the
Philippines", Commonwealth Act 682 authorizes to sit in this Supreme Court a judge who is
just one-day or a one-year Filipino citizen. The violation of the Constitution cannot be more
patent and flagrant.

IV

Section 6 of Article VIII of the Constitution requires that a person to be appointed a member
of the Supreme Court, must be "at least 40 years of age."

No such age requirement is provided in section 8 Article VIII of the Constitution with regards
to judges of inferior courts.

Therefore, a citizen who is 30 years or 20 years of age may be appointed as judge of first
instance.

A judge of first instance of 30 or 20 years, under the provision in question of Commonwealth

Act 682, may be designated by the President to sit in this Supreme Court.

It is necessary that we would explain the reasons of the Constitutional Convention in

requiring that members of this Supreme Court must be at least 40 years of age, as said
reasons are self-evident.

There is no reasoning that can avoid recognizing the fact that the provision of
Commonwealth Act 682 in authorizing, in fact, that judge of 30 or 20 years of age may sit as
acting Justice of the Supreme Court is an evident violation of Section 6 of Article VIII of the
Constitution.

Section 6 of Article VIII of the Constitution provides that no person may be appointed
member of the Supreme Court unless he "has for ten years or more been a judge of a court
of record or engaged in the practice of law in the Philippines."

Section 8 of Article VIII of the Constitution also requires that judges of inferior courts should
have been "admitted to the practice of law in the Philippines."

Therefore, a lawyer who has just been authorized to practice law may immediately be
appointed a judge of first instance.

Such a judge, under Act 682, may be designated to sit as a member of the Supreme Court.
This is another clear violation of the Constitution when it provides in section 6 of Article VIII
that no person may be appointed as member of the Supreme Court unless "he has for ten
years or more been a judge of a court of record or engaged in the practice of law in the
Philippines."

VI

Section 7 Article VIII of the Constitution provides:

"No judge appointed to a particular district shall be designated or transferred to

another district without the approval of the Supreme Court. The Congress shall be
law determine the residence of judges of inferior courts."

If a municipal judge of an inferior court including courts of first instance and municipal and
justice of the peace courts cannot be transferred or designated to another district without the
approval of the Supreme Court, how can he be transferred to a higher court, such as the
Supreme Court, without the approval of the latter?

If to transfer a judge of a municipal court to another municipal court the Constitution requires
the approval of the Supreme Court, although the transfer is to a court of the same category
as the one to which the judge has been appointed, and so is the case of a judge of first
instance, it is so because the Constitution seeks to maintain the stability of judges in their
respective districts, and that stability cannot be disturbed but by following the constitutional
procedure.

Under the maxim of inclusio unius est exclusion alterius, a judge of an cannot be transferred
but only to other district of the same category, provided the transfer is approved by the
Supreme Court.

The designation of judges of first instance to sit in this Supreme Court as provided in section
14 of Act 682 is, in effect, a transfer, and being a transfer not expressly authorized by the
Constitution cannot be effected without violating the Constitution.

VII

So far we have dealt with the qualifications of judges of inferior courts as required by the
Constitution, and it may be argued that the provisions of the Constitution do not preclude the
legislative power from requiring, besides the minimum qualifications fixed by the Constitution,
further qualifications in such a way that no person may be appointed as judge of an inferior
court unless he possesses the same qualifications required by the Constitution for a person
to be appointed as a member of the Supreme Court.

As can be seen, the argument is based on a legal situation which may be set up by the
legislative power, but may not also happen in actual practice. This very fact is enough basis
for dismissing the argument.

But if this were not enough, we may point out that the situation at present shows the innate
weakness of the argument, as the law at present does not require that a person to be
appointed to a position in any inferior court should have the same qualifications required by
the Constitution for a person to be appointed as a member of the Supreme Court.
The qualifications of judges of first instance, the next following in category of Justices of the
Supreme Court, are provided for in section 149 of the Administrative Code, which reads as
follows:

"SEC. 149. Qualifications. No person shall be appointed judge of first instance or

auxiliary judge unless he has practiced law in the Philippine Islands or in the United
States for a period of not less than five years or has held during alike period, within
the Philippine Islands or within the United States, an office requiring a lawyer's
diploma as an indispensable requisite; and before assuming such judicial office he
shall qualify as member of the bar of the Supreme Court of the Philippine Islands if
he has not already done so."

As it can be seen, none of the three essential qualifications specifically required by the
Constitution for a person to be appointed as a member of the Supreme Court is required for
a person to be appointed as judge of first instance.

Consequently, section 14 of Act 682 in undeniably unconstitutional, not only because it

disqualifies and eliminates five members of this Supreme Court, including the Chief Justice,
such disqualifications being violative of the Constitution, as we have shown in our dissenting
opinion in this same case dated February 27, 1946, but because in its second paragraph it
authorizes the designation of judges of inferior courts to site temporarily as Justices of the
Supreme Court, although said judges are not required to possess the qualifications required
of a member of the Supreme Court.

Said paragraph of section 14 of Act 682 reads as follows:

"If, on account of such disqualification, or because of any grounds of disqualification

of Judges in Rule 126, section 1 of the Rules of Court, or on account of illness,
absence or temporary disability the requisite number of Justices necessary to
constitute a quorum or to render judgment in any case is not present, the President
may designate such number of Judges of First Instance, Judges-at-large of First
Instance, or Cadastral Judges, having none of the disqualifications set forth in said
section one hereof, as may be necessary to sit temporarily as Justices of said
Justices of said Court, in order to form aquorum or until a judgment in said case is
reached."

It can be alleged, as a matter of fact, that the five judges designated by the President of the
Philippines to sit as temporary Justices of the Supreme Court in substitution of the Chief
Justice and four Justices who inhibited themselves from taking part in the consideration of
this case, possess each and everyone of them all the minimum qualifications required by the
Constitution of a person who could be appointed as Justice of the Supreme Court..

The fact does not destroy the theory that the second paragraph of section 14 of Act 682
authorizes, in utter violation of the Constitution, the designation of judges not possessing all
or any of the three minimum constitutional qualifications as Justices of the Supreme Court to
sit and act as such Justices of the Supreme Court.

VIII

To give effectiveness to section 14 of Act 682 is to sanction a principle radically wrong and
highly subversive.
P.338-368.

(THIRTY MORE PAGES TO FOLLOW).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-49 November 12, 1945

WILLIAM F. PERALTA, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

William F. Peralta in his own behalf.

Office of the Solicitor General Taada for respondent.
City Fiscal Mabanag as amicus curiae.

FERIA, J.:

Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged with the

supervision and control of the production, procurement and distribution of goods and other
necessaries as defined in section 1 of Act No. 9 of the National Assembly of the so-called Republic
of the Philippines, was prosecuted for the crime of robbery as defined and penalized by section 2 (a)
of Act No. 65 of the same Assembly. He was found guilty and sentenced to life imprisonment, which
he commenced to serve on August 21, 1944, by the Court of Special and Exclusive Criminal
Jurisdiction, created in section 1 of Ordinance No. 7 promulgated by the President of the so-called
Republic of the Philippines, pursuant to the authority conferred upon him by the Constitution and
laws of the said Republic. And the procedure followed in the trial was the summary one established
in Chapter II of Executive Order No. 157 of the Chairman of the Executive Commission, made
applicable to the trial violations of said Act No. 65 by section 9 thereof and section 5 of said
Ordinance No. 7.

The petition for habeas corpus is based on the ground that the Court of Special and Executive
Criminal Jurisdiction created by Ordinance No. 7 "was a political instrumentality of the military forces
of the Japanese Imperial Army, the aims and purposes of which are repugnant to those aims and
political purposes of the Commonwealth of the Philippines, as well as those of the United States of
America, and therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are
violative of the fundamental laws of the Commonwealth of the Philippines and "the petitioner has
been deprived of his constitutional rights"; that the petitioner herein is being punished by a law
created to serve the political purpose of the Japanese Imperial Army in the Philippines, and "that the
penalties provided for are much (more) severe than the penalties provided for in the Revised Penal
Code."

The Solicitor General, in his answer in behalf of the respondent, states that, in his own opinion, for
the reasons expressed in his brief in the case of People of the Philippines, plaintiff-appellant, vs.
Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p. 612, post), the acts and
proceedings taken and had before the said Court of Special and Exclusive Criminal Jurisdiction
which resulted in the conviction and imprisonment of the herein petitioner, should now be denied
force and efficacy, and therefore the petition for habeas corpus should be granted. The reasons
advanced by the Solicitor General in said brief and in his reply memorandum in support of his
contention are, that the Court of Special and Exclusive Criminal Jurisdiction created, and the
summary procedure prescribed therefor, by said Ordinance No. 7 in connection with Executive Order
No. 157 of the Chairman of the Executive Commission are tinged with political complexion; that the
procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates the Constitution of the
Commonwealth, and impairs the Constitutional rights of accused persons under their legitimate
Constitution. And he cites, in support of this last proposition, the decisions of the Supreme Court of
the United States in the cases of Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall.,
570, 581); United States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs. United States (20
Wall., 459).

The City Fiscal of Manila appeared before this Court as amicus curiae. In his memorandum he
submits that the petition for habeas corpus be denied on the following grounds: That the Court of
Special and Exclusive Criminal Jurisdiction and the Acts, Ordinances and Executive Orders, creating
it are not of a political complexion, for said Court was created, and the crimes and offenses placed
under its jurisdiction were penalized heavily, in response to an urgent necessity, according to the
preamble of Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right;
and that the summary procedure established in said Ordinance No. 7 is not violative of the provision
of Article III, section 1 (18) of the Constitution of the Commonwealth, to the effect that no person
shall be compelled to be a witness against himself, nor of the provision of section 1 (1) of the same
Article that no person shall be deprived of life, liberty, or property without due process of law.

The features of the summary procedure adopted by Ordinance No. 7, assailed by the petitioner and
the Solicitor General as impairing the constitutional rights of an accused are: that court may
interrogate the accused and witnesses before trial in order to clarify the points in dispute; that the
refusal of the accused to answer the questions may be considered unfavorable to him; that if from
the facts admitted at the preliminary interrogatory it appears that the defendant is guilty, he may be
immediately convicted; and that the sentence of the sentence of the court is not appealable, except
in case of death penalty which cannot be executed unless and until reviewed and affirmed by a
special division of the Supreme Court composed of three Justices.

Before proceeding further, and in order to determine the law applicable to the questions involved in
the present case, it is necessary to bear in mind the nature and status of the government established
in these Islands by the Japanese forces of occupation under the designation of Republic of the
Philippines.

In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113, 127, ante),
recently decided, this Court, speaking through the Justice who pens this decision, held:

In view of the foregoing, it is evident that the Philippines Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
forces, was a civil government established by the military forces of occupation and therefore
a de facto government of the second kind. It was not different from the government
established by the British in Castine, Maine, or by the United States in Tanpico, Mexico. As
Halleck says, "the government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror over the
conquered, and is subject to all restrictions which that code imposes. It is of little
consequence whether such government be called a military or civil government. Its character
is the same and the source of its authority the same. In either case it is a government
 imposed by the laws of war and so far as it concerns the inhabitants of such territory or the
rest of the world those laws alone determine the legality or illegality of its acts." (vol. 2 p.
466.) The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals is of no consequence.

And speaking of the so-called Republic of the Philippines in the same decision, this Court said:

The so-called Republic of the Philippines, apparently established and organized as a

sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippine Executive Commission, and the
ultimate source of its authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion
of which has been already quoted, "under enemy duress, a so-called government styled as
the 'Republic of the Philippines' was established on October 14, 1943, based upon neither
the free expression of the peoples" will nor the sanction of the Government of the United
States.' Japan had no legal power to grant independence to the Philippines or transfer the
sovereignty of the United States to, or recognize the latent sovereignty of the Filipino people,
before its military occupation and possession of the Islands had matured into an absolute
and permanent dominion or sovereignty by a treaty of peace or other means recognized in
the law of nations.

As the so-called Republic of the Philippines was a de facto government of the second kind (of
paramount force), as the government established in Castine, Maine, during its occupation by the
British forces and as that of Tampico, Mexico, occupied during the war with that the country by the
United State Army, the question involved in the present case cannot be decided in the light of the
Constitution of the Commonwealth Government; because the belligerent occupant was totally
independent of the constitution of the occupied territory in carrying out the administration over said
territory; and the doctrine laid down by the Supreme Court of the United States in the cases involving
the validity of judicial and legislative acts of the Confederate States, considered as de
facto governments of the third kind, does not apply to the acts of the so-called Republic of the
Philippines which is a de facto government of paramount force. The Constitution of the so-called
Republic of the Philippines can neither be applied, since the validity of an act of a belligerent
occupant cannot be tested in the light of another act of the same occupant, whose criminal
jurisdiction is drawn entirely from the law martial as defined in the usages of nations.

In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United States held
that, by the military occupation of Castine, Maine, the sovereignty of the United States in the territory
was, of course, suspended, and the laws of the United States could no longer be rightfully enforced
there or be obligatory upon the inhabitants who remained and submitted to the belligerent occupant.
By the surrender the inhabitants passed under a temporary allegiance to the British government, and
were bound by such laws, and such only, as it chose to recognize and impose. And Oppenheim, in
his Treatise on International Law, says that, in carrying out the administration over the occupied
territory and its inhabitants, "the (belligerent) occupant is totally independent of the constitution and
the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of
his forces, and the purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)

The doctrine laid down in the decisions of the Supreme Court of the United States (in the cases of
Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570; Williams vs. Bruffy, 96 U. S., 176
United States vs. Home Insurance Co., 20 Wall., 249; Sprott vs. United States, 20 Wall., 459, and
others) that the judicial and legislative acts of the Confederate States which impaired the rights of
the citizens under the Constitution of the United States or of the States, or were in conflict with those
constitutions, were null and void, is not applicable to the present case. Because that doctrine rests
on the propositions that "the concession (of belligerency) made to the Confederate Government . . .
sanctioned no hostile legislation . . . and it impaired in no respect the rights of loyal and citizens as
they existed at the commencement of hostilities" (Williams vs. Bruffy, supra);that the Union is
perpetual and indissoluble, and the obligation of allegiance to the to the estate and obedience to her
laws and the estate constitution, subject to the Constitution of the United States, remained
unimpaired during the War of Secession (Texas vs. White, supra) and that the Confederate States
"in most, if not in all instances, merely transferred the existing state organizations to the support of a
new and different national head. the same constitution, the same laws for the protection of the
property and personal rights remained and were administered by the same officers."
(Sprott vs. United States, supra). In fine, because in the case of the Confederate States, the
constitution of each state and that of the United States or the Union continued in force in those
states during the War of Secession; while the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the Japanese forces of the belligerent
occupant at regular war with the United States.

The question which we have to resolve in the present case in the light of the law of nations are, first,
the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction, and of the
summary procedure adopted for that court; secondly, the validity of the sentence which
imprisonment during the Japanese military occupation; and thirdly, if they were then valid, the effect
on said punitive sentence of the reoccupation of the Philippines and the restoration therein of the
Commonwealth Government.

(1) As to the validity of the creation of the Court of Special and Exclusive Criminal Jurisdiction by
Ordinance No. 7, the only factor to be considered is the authority of the legislative power which
promulgated said law or ordinance. It is well established in International Law that "The criminal
jurisdiction established by the invader in the occupied territory finds its source neither in the laws of
the conquering or conquered state, it is drawn entirely form the law martial as defined in the
usages of nations. The authority thus derived can be asserted either through special tribunals,
whose authority and procedure is defined in the military code of the conquering state, or through the
ordinary courts and authorities of the occupied district." (Taylor, International Public Law, p. 598.)
The so-called Republic of the Philippines, being a governmental instrumentality of the belligerent
occupant, had therefore the power or was competent to create the Court of Special and Exclusive
Criminal Jurisdiction. No question may arise as to whether or not a court is of political complexion,
for it is mere a governmental agency charged with the duty of applying the law to cases falling within
its jurisdiction. Its judgments and sentences may be of political complexion, or not depending upon
the nature or character of the law so applied. There is no room for doubt, therefore, as to the validity
of the creation of the court in question.

With respect to the Summary procedure adopted by Ordinance No. 7, and followed in the trial of the
case which resulted in the conviction of the herein petitioner, there is also no question as to the
power or competence of the belligerent occupant to promulgate the law providing for such
procedure. For "the invader deals freely with the relations of the inhabitants of the occupied territory
towards himself . . . for his security also, he declares certain acts, not forbidden by the ordinary laws
of the country, to be punishable; and he so far suspends the laws which guard personal liberty as is
required for the summary punishment of any one doing such acts." (Hall's International Law, seventh
ed., p. 5000). A belligerent "occupant may where necessary, set up military courts instead of the
ordinary courts; and in case, and in so far as, he admits the administration of justice by the ordinary
courts, he may nevertheless, so far as is necessary for military purposes, or for the maintenance of
public order and safety temporarily alter the laws, especially the Criminal Law, on the basis of which
justice is administered as well as the laws regarding procedure." (Oppenheim's International Law,
Vol. II, sixth edition, 1944, p.349.)
No objection can be set up to the legality of its provisions in the light of the precepts of our
Commonwealth Constitution relating to the rights of accused under that Constitution, because the
latter was not in force during the period of the Japanese military occupation, as we have already
stated. Nor may said Constitution be applied upon its revival at the time of the re-occupation of the
Philippines by virtue of the principle of postliminium because "a constitution should operate
prospectively only, unless the words employed show a clear intention that it should have a
retrospective effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases quoted
and cited in the footnote), especially as regards laws of procedure applied to cases already
terminated completely.

The only restrictions or limitations imposed upon the power of a belligerent occupant to alter the laws
or promulgate new ones, especially the criminal law as well as the laws regarding procedure, so far
as it is necessary for military purposes, that is, for his control of the territory and the safety and
protection of his army, are those imposed by the Hague Regulations, the usages established by
civilized nations, the laws of humanity and the requirements of public conscience. It is obvious that
the summary procedure under consideration does not violate those precepts. It cannot be
considered as violating the laws of humanity and public conscience, for it is less objectionable, even
from the point of view of those who are used to the accusatory system of criminal procedure than the
procedural laws based on the semi-inquisitorial or mixed system prevailing in France and other
countries in continental Europe.

(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal Jurisdiction
which imposes life imprisonment upon the herein petitioner, depends upon the competence or power
of the belligerent occupant to promulgate Act No. 65 which punishes the crime of which said
petitioner was convicted.

Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907 "indicates that the
laws to be enforced by the occupant consist of, first, the territorial law in general, as that which
stands to the public order and social and commercial life of the district in a relation of mutual
adaptation, so that any needless displacement of it would defeat the object which the invader is
enjoined to have in view, and secondly, such variations of the territorial law as may be required by
real necessity and are not expressly prohibited by any of the rules which will come before us. Such
variations will naturally be greatest in what concerns the relation of the communities and individuals
within the district to the invading army and its followers, it being necessary for the protection of the
latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment
shall not only lose what justification the territorial law might give them as committed against
enemies, but shall be repressed more severely than the territorial law would repress acts committed
against fellow subjects. Indeed the entire relation between the invaders and the invaded, so far as it
may fall within the criminal department whether by the intrinsic nature of the acts done or in
consequence of the regulations made by the invaders, may be considered as taken out of the
territorial law and referred to what is called martial law." (Westlake, International Law, Part II, War, p.
96.)

According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far as it is used to
describe any fact in relation to belligerent occupation, does not refer to a particular code or system of
law, or to a special agency entrusted with its administration. The term merely signifies that the body
of law actually applied, having the sanction of military authority, is essentially martial. All law, by
whomsoever administered, in an occupied district martial law; and it is none the less so when
applied by civil courts in matters devoid of special interest to the occupant. The words "martial law"
are doubtless suggestive of the power of the occupant to share the law as he sees fit; that is, to
determine what shall be deemed lawful or unlawful acts, to establish tests for ascertaining the guilt of
offenders, to fix penalties, and generally to administer justice through such agencies as the found
expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant may promulgate
such new laws and regulations as military necessity demands, and in this class will be included
those laws which come into being as a result of military rule; that is, those which establish new
crimes and offenses incident to a state of war and are necessary for the control of the country and
the protection of the army, for the principal object of the occupant is to provide for the security of the
invading army and to contribute to its support and efficiency and the success of its operations. (Pub.
1940, pp. 76, 77.)

From the above it appears clear that it was within the power and competence of the belligerent
occupant to promulgate, through the National Assembly of the so-called Republic of the Philippines,
Act No. 65 of the said Assembly, which penalizes the crimes of robbery and other offenses by
imprisonment ranging from the maximum period of the imprisonment prescribed by the laws and
ordinances promulgated by the President of the so-called Republic as minimum, to life imprisonment
or death as maximum. Although these crimes are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties, as new crimes and
offenses demanded by military necessity, incident to a state of war, and necessary for the control of
the country by the belligerent occupant, the protection and safety of the army of occupation, its
support and efficiency, and the success of its operations.

They are not the same ordinary offenses penalized by the Revised Penal Code. The criminal acts
penalized by said Act No. 65 are those committed by persons charged or connected with the
supervision and control of the production, procurement and distribution of foods and other
necessaries; and the penalties imposed upon the violators are different from and much heavier than
those provided by the Revised Penal Code for the same ordinary crimes. The acts penalized by said
Act were taken out of the territorial law or Revised Penal Code, and referred to what is called martial
law by international jurists, defined above by Hyde, in order, not only to prevent food and other
necessaries from reaching the "guerrillas" which were harassing the belligerent occupant from every
nook and corner of the country, but also to preserve the food supply and other necessaries in order
that, in case of necessity, the Imperial Japanese forces could easily requisition them, as they did,
and as they had the right to do in accordance with the law of nations for their maintenance and
subsistence (Art. LII, Sec. III, Hague Conventions of 1907). Especially taking into consideration the
fact, of which this court may take judicial notice, that the Imperial Japanese Army had depended
mostly for their supply upon the produce of this country.

The crimes penalized by Act No. 65 as well as the crimes against national security and the law of
nations, to wit: treason, espionage, inciting war, violation of neutrality, correspondence with hostile
country, flight to enemy's country, piracy; and the crimes against public order, such as rebellion,
sedition and disloyalty, illegal possession of firearms and other, penalized by Ordinance No. 7 and
placed under jurisdiction of the Court of Special and Exclusive Criminal Jurisdiction are all of a
political complexion, because the acts constituting those offenses were punished, as are all political
offenses, for public rather than private reasons, and were acts in aid or favor of the enemy and
against the welfare, safety and security of the belligerent occupant. While it is true that these
offenses, when committed against the Commonwealth or United States Government, are defined
and also penalized by the territorial law Revised Penal Code, they became inapplicable as crimes
against the occupier upon the occupation of the Islands by the Japanese forces. And they had to be
taken out of the territorial law and made punishable by said Ordinance No. 7, for they were not
penalized before under the Revised Penal Code when committed against the belligerent occupant or
the government established by him in these Island. They are also considered by some writers as war
crimes in a broad sense. In this connection Wheaton observes the following:

"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts from time to
time ordered to be done or forbidden to be done in the martial law proclamation or regulations of the
invading or occupying commander. Thus, in the Anglo-Boer war, the British military authorities
proclaimed the following to be offenses against their martial law; Being in possession of arms,
ammunition, etc.; traveling without a permit; sending prohibited goods; holding meetings other than
those allowed; using seditious language; spreading alarmist reports; overcharging for goods;
wearing uniforms without due authority; going out of doors between certain hours; injuring military
animals or stores; being in possession, without a permit, of horses, vehicles, cycles, etc.; hindering
those in execution of military orders; trespassing on defense works. Such offenses, together with
several others, were specified in the Japanese regulations made in the Russo-Japanese war."
(Wheaton's International Law, War, seventh edition, 1944, p. 242.)

It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction against the petitioner, imposing upon him the penalty of life imprisonment, was good and
valid, since it was within the admitted power or competence of the belligerent occupant to
promulgate the law penalizing the crime of which petitioner was convicted.

(3) The last question is the legal effect of the reoccupation of the Philippines and restoration of the
Commonwealth Government; that is whether or not, by the principle of postliminy, the punitive
sentence which petitioner is now serving fell through or ceased to be valid from that time.

In order to resolve this last question, it is not necessary to enter into an elaborate discussion on the
matter. It is sufficient to quote the opinion on the subject of several international jurists and our
recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.

Hall, commenting on the effect of the principle of postliminy upon sentences of the tribunals
continued or created by the belligerent occupant, opines "that judicial acts done under this control,
when they are not of a political complexion, administrative acts so done, to the extent that they take
effect during the continuance of his control, and the various acts done during the same time by
private persons under the sanction of municipal law, remain good. . . . Political acts on the other
hand fall through as of course, whether they introduce any positive change into the organization of
the country, or whether they only suspend the working of that already in existence. The execution
also of punitive sentences ceases as of course when they have had reference to acts not criminal by
the municipal law of the state, such for example as acts directed against the security or control of the
invader." (Hall's International Law, seventh edition, p. 518.)

Westlake, speaking of the duration of the validity of punitive sentences for offenses such as the one
in question, which is within the admitted power or competence of the belligerent occupant to punish,
says that: "To the extent to which the legal power of the occupant is admitted he can make law for
the duration of his occupation. Like any other legislator he is morally subject to the duty of giving
sufficient notice of his enactments or regulations, not indeed so as to be debarred from carrying out
his will without notice, when required by military necessity and so far as practically carrying out his
will can be distinguished from punishment, but always remembering that to punish for breach of a
regulation a person who was justifiably ignorant of it would be outrageous. But the law made by the
occupant within his admitted power, whether morally justifiable or not, will bind any member of the
occupied population as against any other member of it, and will bind as between them all and their
national government, so far as it produces an effect during the occupation. When the occupation
comes to an end the authority of the national government is restored, either by the progress of
operations during the war or by the conclusion of a peace, no redress can be had for what has been
actually carried out but nothing further can follow from the occupant's legislation. A prisoner detained
under it must be released, and no civil right conferred by it can be further enforced. The enemy's law
depends on him for enforcement as well as for enactment. The invaded state is not subject to the
indignity of being obliged to execute his commands. (Westlake, International Law, Part II, War, pp.
97, 98.)
And Wheaton, who, as above stated, considers as war crimes such offenses as those penalized in
Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant possess legal validity,
and under international law should not be abrogated by the subsequent government. But this rule
does not necessarily apply to acts that exceed the occupant's power (e.g., alienation of the domains
of the State or the sovereign), to sentences for 'war treason' and 'war crimes,' to acts of a political
character, and to those that beyond the period of occupation. When occupation ceases, no
reparation is legally due for what has already been carried out." (Wheaton's International Law, supra,
p. 245.)

We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan Keh and
Dizon, supra, that all judgments of political complexion of the courts during the Japanese regime,
ceased to be valid upon the reoccupation of the islands by virtue of the principle or right of
postliminium. Applying that doctrine to the present case, the sentence which convicted the petitioner
of a crime of a political complexion must be considered as having ceased to be valid ipso facto
upon the reoccupation or liberation of the Philippines by General Douglas MacArthur.

It may not be amiss to say in this connection that it is not necessary and proper to invoke the
proclamation of General Douglas MacArthur declaring null and void all laws, among them Act No.
65, of the so-called Republic of the Philippines under which petitioner was convicted, in order to give
retroactive effect to the nullification of said penal act and invalidate sentence rendered against
petitioner under said law, a sentence which, before the proclamation, had already become null and
of no effect.

We therefore hold that the punitive sentence under consideration, although good and valid during
the military occupation of the Philippines by the Japanese forces, ceased to be good and valid ipso
facto upon the reoccupation of these Island and the restoration therein of the Commonwealth
Government.

In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and it is ordered
that the petitioner be released forthwith, without pronouncement as to costs. So ordered.

Jaranilla, Pablo and Bengzon, JJ., concur.

Moran, C.J., concurs in the result.

Separate Opinions

OZAETA, J., concurring:

Amidst the forest of opinions that have cropped up in this case it would seem unnecessary to plant
an additional tree. To justify our effort lest we seem intent to bring coal to Newcastle we ought
to state that the following opinion had been prepared before the others were tendered. It has been
impossible for the Court to reconcile and consolidate the divergent views of its members although
they arrive at practically the same result.

Accused of robbery in the Court of Special and Exclusive Criminal Jurisdiction of Manila, the
petitioner was found guilty and sentenced to life imprisonment. He commenced to serve the
sentence on August 21, 1944. He now petitions this Court for the writ of habeas corpus, alleging that
Ordinance No. 7, by which the Court of Special and Exclusive Criminal Jurisdiction was created and
which was promulgated on March 8, 1944, by the President of the "Republic of the Philippines," was
null and void ab initio. The Solicitor General, answering the petition on behalf of the respondent
Director of Prisons, expressed the opinion that "the acts and proceedings taken and before the said
Court of Special and Exclusive Criminal Jurisdiction which resulted in the conviction and
imprisonment of the herein prisoner should now be denied force and efficacy," and recommended
"that the writ of habeas corpus prayed for be granted and that the City Fiscal be instructed to
prepare and file the corresponding information for robbery against the petitioner herein in the Court
of First Instance of Manila."

The case was argued before us on September 21 and 22, 1945, by the First Assistant Solicitor
General on behalf of the respondent and the City Fiscal as amicus curiae the former impugning
and the latter sustaining the validity of said Ordinance No. 7. Section 1 of the ordinance in question
reads as follows:

SECTION 1. There is hereby created in every province and city throughout the Philippines
one or more courts of special criminal jurisdiction as the President of the Republic of the
Philippines may determine upon recommendation of the Minister of Justice, which courts
shall have exclusive jurisdiction to try and determine crimes and offenses penalized by Act
No. 65 entitled "An Act imposing heavier penalties for crimes involving robbery, bribery,
falsification, frauds, illegal exactions and transactions, malversation of public funds and
infidelity as defined in the Revised Penal Code and violations of food control laws, when
committed by public officers and employees, and for similar offenses when committed by
private individuals or entities, and providing for a summary procedure for the trial of such
offenders."

Section 2 confers upon the court mentioned in section 1 exclusive jurisdiction also to try the following
crimes as defined in the Revised Penal Code: crimes against national security and the law of
nations, crimes against public order, brigandage, arson and other crimes involving destruction, illegal
detention committed by private individuals and kidnapping of minors; and illegal possession of
firearms, as defined in an executive order. Section 3 provides for the appointment of one judge of
first instance to preside over the court above mentioned and of a special prosecutor in each special
court. Section 4 authorizes the court to impose a longer term of imprisonment than that fixed by law,
or imprisonment for life or death where not already fixed by law, for the crimes and offenses
mentioned in section 2. The remaining sections read as follows:

SEC. 5. The trial of the cases arising sections 1 and 2 hereof shall be started within two days
after the filing of the corresponding information, shall be summary in procedure, and shall
aim at their expeditious and prompt disposition. Technicalities shall be avoided and all
measures calculated to serve this end shall be taken by the trial judge. Said cases shall be
decided within four days after the same are submitted for decision. The summary procedure
provided in Act No. 65 insofar as not inconsistent with the provisions of this Ordinance, shall
govern the trial of the cases enumerated in said sections 1 and 2 hereof.

SEC. 6. The decisions of the special courts herein created shall be final except where the
penalty imposed is death, in which case the records of the particular case shall be
elevated en consulta to a special division of the Supreme Court composed of the three
members to be designated by the President of the Republic of the Philippines. The clerk of
each special court, upon the promulgation of a decision imposing the death penalty, shall
immediately forward the records of the case to the special division of the Supreme Court
herein created, which shall decide the case within fifteen days from the receipt of the records
thereof.
 SEC. 7. The interest of public safety so requiring it, the privileges of the writ of habeas
corpus are hereby suspended with respect to persons accused of, or under investigations
for, any of the crimes and offenses enumerated in sections 1 and 2 hereof.

SEC. 8. All laws, rules or orders, or parts thereof, inconsistent with the provisions hereof, are
hereby repealed or modified accordingly.

SEC. 9. This Ordinance shall take effect immediately upon its promulgation.

The summary procedure provided in Act No. 65 of the "Republic," as referred to in section 5 above
quoted, is in turn that established by Chapter II of Executive Order No. 157 of the Chairman of the
Philippine Executive Commission, dated May 18, 1943. Under said procedure (section 17) "search
warrants may be issued by the court or by any prosecuting officer, authorizing peace officers to
search for and seize any articles or objects described in the warrant, including those which may be
regarded as evidence of an offense under this Order even if such articles or objects are not included
among those described in section 2, Rule 122, of the Rules of Court." Section 18 reads as follows:

SEC. 18. The accused or his representative may be examined by the court, and with the
permission of the court, by the fiscal or other prosecuting officer as to any matters favorable
or unfavorable to him or his principal; and either may apply to the judge for the examination
of the co-accused or the representative of the latter in matters related to the defense of the
accused. Statements made by the accused, his co-accused, or the representative of the
accused or a person acting in a similar capacity, irrespective of the circumstances under
which they were made, shall be admissible in evidence if material to the issue.

Section 21 provides for the summary trial in the following manner:

Such trials shall be conducted according to the following rules:

(a) After arraignment and plea, the court shall immediately cause to be explained to the
accused the facts constituting the offenses with which he is charged, and the judge shall
interrogate the accused and the witnesses as to the facts and circumstances of the case in
order to clarify the points in dispute and those which are admitted.

(b) Refusal of the accused to answer any questions made or allowed by the court may be
considered unfavorable to him.

(c) Except for justifiable reasons, the accused shall not be allowed to plead and assert
defenses that are inconsistent with each other.

(d) If from the facts admitted at the preliminary interrogation, it should appear that the
accused is guilty of the crime charged in the information, or in any other information, or in
any other information, or in any other information subsequently filed by the prosecuting
officer, a sentence of conviction may be immediately rendered against the accused.
Otherwise, the judge shall dictate an order distinctly specifying the facts admitted by the
accused and those which are in dispute, and the trial shall be limited to the latter, unless the
judge, for special reasons, otherwise directs.

(e) Unjustified absence of an accused who has been released on bail, or of his
representative shall not be a ground for interrupting the proceedings or attacking the validity
of the judgment.
 The provisions of Rules 115 to 117 of the Rules of Court shall be suppletory to the foregoing
insofar as they are not in conflict therewith.

The records shows that during their existence the courts of special and exclusive criminal jurisdiction
created by the ordinance in question convicted and sentenced a total of 94 individuals, 55 of whom
had been prosecuted for illegal possession of firearms and 15 for robbery; and that of the 94
convicts only 3, including the herein petitioner, remain in confinement, 21 having escaped, 37 having
been released, and 33 having died.

In synthesis, the argument of the Solicitor General is as follows: Acts of the military occupant which
exceed his power tested by the criterion set forth in article 43 of the Hague Regulations, are null and
without effect as against the legitimate government. (Wheaton's International Law, 7th ed., p. 245.)
Acts in furtherance or support of rebellion against the United States, or intended to defeat the just
rights of citizens, and other Acts of like nature, must, in general, be regarded as invalid and void.
(Texas vs. White, 74 U. S., 733; 19 Law. ed., 240.) Judicial or legislative acts in the insurrectionary
states were valid where they were not hostile in their purpose or mode of enforcement to the
authority of the national government, and did not impair the rights of citizens under the Constitution.
(Horn vs.Lockhart, 17 Wall., 570-581; 21 Law. ed., 660.) All the enactment of the de
facto legislatures in the insurrectionary states during the war, which were not hostile to the Union or
to the authority of the General Government and which were not in conflict with the Constitution of the
United States, or of the states, have the same validity as if they had been enactments of legitimate
legislatures. (United States vs. The Home Insurance Co., 22 Wall., 99-104; 22 Law. ed., 818.)
Tested by these principles of international law, Ordinance No. 7 must be declared void (1) because it
favored the forces of occupation and the civilian Japanese inasmuch as it provided an excessively
heavy penalty for the summary trial of possession of firearms and violations of food control
regulations and (2) because it impaired the rights of citizens under the Constitution inasmuch as the
procedure therein prescribed withdrew the privilege of the accused against self-incrimination and his
right to appeal to the Supreme Court even where the penalty imposed was life imprisonment or
death.

In substance, the City Fiscal argues that the heavier penalty for the illegal possession of firearms
than that fixed by the Administrative Code was not directed toward the suppression of underground
activities against the Japanese army, and the rigid enforcement of the food control measures was
not intended to insure the procurement of supplies by said army, because in any event the Japanese
military occupant freely exercised the power to go after and punish his enemies directly without
recurring to the agencies of the "Republic," for there were even cases where the offenders were
already in the hands of the police or courts of the "Republic" but they were unceremoniously taken
from said agencies by the Japanese military police and punished or liquidated by it at Fort Santiago
or elsewhere; and as regards food control, the Japanese forces did not have any need of the
measures or agencies established by the "Republic" because the Japanese forces themselves
commandeered what they needed or sent out their own agents to purchase it for them at prices even
much higher than those fixed by the "Republic"; that the procedure prescribed afforded a fair trial
and did not violate any fundamental rights; that the military occupant was not in duty bound to
respect the constitution and the laws of the occupied territory; that he could abrogate all of them and
promulgate new ones if he so chose; that the cases cited by the Solicitor General are not applicable
because they deal with the validity of acts and processes of the governments of the rebel states
during the Civil War and are based upon the indissolubility of the Union; that the validity or nullity of
the ordinance in question should be judged in the light of the provisions of the Constitution and the
laws of the "Republic" and of generally accepted principles of international law; that even assuming
that it should be judged by the standard or the Constitution of the Commonwealth, the ordinance
satisfies all the requirements of said Constitution; that the right to appeal in a criminal case is not a
constitutional but a purely statutory right which may be granted or withheld at the pleasure of the
state; and, finally, that the supposed invalidity of the sentence imposed against the petitioner cannot
be raised by habeas corpus.

There is no question that in virtue of that of the proclamation of General MacArthur of October 23,
1944 (41 Off. Gaz., 147, 148), Ordinance No. 7 is no longer of any force and effect since the
restoration of the Government of the Common wealth of the Philippines. The question before us is
whether said ordinance ever acquired any force and effect or was null and void ab initio.

Invoking decisions of the Supreme Court of the United States in cases involving the validity of Acts
of the Confederacy and of a rebel state as a de facto government during the Civil War, the Solicitor
General maintains that the ordinance in question was null and void because it impaired the rights of
citizens under the Constitution and because it was hostile in its purpose to the United States and the
Commonwealth of the Philippines.

The decisions invoked would be applicable if the so-called Republic of the Philippines should be
considered as a government established by the Filipino people in rebellion against the
Commonwealth and the Sovereignty of the United States. The decisions of the Supreme Court of the
United States declaring invalid Acts of a rebel state or of the Confederacy which were in furtherance
or support of rebellion against the United States or which impaired the rights of citizens under the
Constitution, rest on the proposition that the Union is perpetual and indissoluble and that the
obligations of allegiance to the state, and obedience to her laws, subject to the Constitution of the
United States, remained unimpaired during the War of Secession. (See Texas vs. White, 74 U.S.,
700; 19 Law. ed., 227, 237; William vs. Bruffy, 96 U.S., 176; 24 Law. ed. 716.) Obviously, that
proposition does not hold true with respect to a de facto government established by the enemy in an
invaded and occupied territory in the course of a war between two independent nations. Such
territory is possessed temporarily so possessed temporarily by lawful government at war with the
country of which the territory so possessed is a part, and during that possession the obligations of
the inhabitants to their country are suspended, although not abrogated (United States vs. Rice, 4
Wheat., 253; Fleming vs. Page 9 How., 614; Baldy vs. Hunter, 171 U.S., 388; 43 Law. ed., 208,
210.) In the case of Williams vs. Bruffy, supra, the court, speaking though Mr. Justice Field,
observed: "The rule stated by Vattel, that the justice of the cause between two enemies being by law
of nations reputed to be equal, whatsoever is permitted to the one in virtue of war is also permitted to
the other, applies only to cases of regular war between independent nations. It has no application to
the case of a war between an established government and insurgents seeking to withdraw
themselves from its jurisdiction or to overthrow its authority. The court further stated that the
concession of belligerent rights made to the Confederate Government sanctioned no hostile
legislation and impaired in no respect the rights loyal citizens as they had existed at the
commencement of hostilities.

On the other hand, in a war between independent nations "the rights of the occupant as a law-giver
have broad scope." He many "suspend the existing laws and promulgate new ones when the
exigencies of the military service demand such action. According to the Rules of Land Warfare he
will naturally alter or suspend all laws of a political nature as well as a political privileges, and laws
which affect the welfare and safety of his command." (Hyde on International Law, vol. 2, p. 367.) It
will be seen then that in a war between independent nation the army of occupation has the right to
enact laws and take measures hostile to its enemy, for its purpose was to harass and subdue the
latter; and it is not bound to respect or preserve the rights of the citizens of the occupied territory
under their Constitution.

Let us now look into the nature and status of the government styled "Republic of the Philippines "in
order to determined the criterion by which the validity of its enactments should be tested. In the
recent case of Co Kim Cham vs. Valdez Tan Keh Dizon (G.R. No. L-5, p. 113, ante), this Court
speaking through Justice Feria, had occasion to comment upon the nature of said government in the
following words:

The so-called Republic of the Philippines, apparently established and organized as a

sovereign state independent from any other government by the Filipino people, was, in truth
and reality, a government established by the belligerent occupant or the Japanese forces of
occupation. It was of the same character as the Philippines Executive Commission, and the
ultimate source of its authority was the same the Japanese military authority and
government. As General McArthur stated in his proclamation of October 23, 1944, a portion
of which had been already quoted, "under enemy duress a was established on October 14,
1943, base upon neither the free expression of the peoples" will nor the sanction of the
Government of the United States.' Japan had no legal power to grant independence to the
Philippines or transfer the sovereignty of the United State to, or recognize the latent
sovereignty of, the Filipino people, before its military occupation and possession of the
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of
peace or other means recognized in the law of nations. For it is a well-established doctrine in
internal law, recognized in the law, recognized in Article 45 of the Hague Conventions of
1907 (which prohibits compulsion of the population of the occupied territory to swear
allegiance to the hostile power), that belligerent occupation, being essentially provisional,
does not severe to transfer sovereignty over the territory controlled although the de jure
government is during the period of occupancy deprived of the power to exercise its rights as
such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat.,
246; Fleming vs. Page, 9 Howard, 603; Downes vs. Bidwell, 182 U.S., 345.) The formation of
the Republic of the Philippines was a scheme contrived by Japan to delude of the Filipino
people into believing in the apparent magnanimity of the Japanese gesture of transferring or
turning over the rights of governments into the hands of Filipinos. It was established under
the mistaken belief that, by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and other allied nations.

We reaffirmed those statements. To show further the fictitious character of much-propagandized

"independence" which Japan purported to grant to the Philippines through the establishment of the
"Republic", we may add that, as matter of contemporary history and of common knowledge, in
practice the Japanese military authorities in the Philippines never treated the "Republic of the
Philippines" as an independent government after its inauguration. They continued to impose their will
on its executive officials when their interests so required. The Japanese military police arrested and
punished various high officials of said government, including the First Assistant Solicitor General,
and paid no attention to the protests and representations made on their behalf by the President of
the "Republic." As a climax of their continual impositions, in December 1944 the Japanese military
authorities placed the President and the members of his Cabinet under the "protective" custody of
the military police, and on the 22nd of the month forced them to leave the seat of the government in
Manila and hide with them in the mountains. The only measure they did not succeed in imposing
upon the "Republic" was the conscription of the Filipino youth into an army to fight with the Japanese
against the United States. So, while in theory and for the purpose of propaganda Japan professed to
be a benefactor and liberator of the Filipinos, hoping thereby to secure their willing cooperation in
her war efforts, in practice she continued to enslave and oppress the Filipinos, as she saw that the
latter remained loyal to the United States. She found that the Filipinos merely feigned cooperation as
their only means of self-preservation and that those who could stay beyond the reach of her army of
occupation manifested their hospitality by harassing and attacking that army. Thus Japan continued
to oppress and tyrannize the Filipinos notwithstanding the former's grant of "independence" to the
latter. It would therefore be preposterous to declare that the "Republic of the Philippines" was a
government established by the Filipino people in rebellion against the Commonwealth and the
sovereignty of the United States.
The said government being a mere instrumentality of the Commander in Chief of the Japanese army
as military occupant, the ordinance question promulgated by the President of the "Republic" must be
deemed as an act emanating from the power or authority of said occupant. The question, therefore,
is whether or not it was within the competence of the military occupant to pass such a law.

Article 43 of the Hague Regulations provides as follows:

ART. 43. The authority of the legitimate power having actually passed into the hands of the
occupant, the latter shall take all steps in his power to reestablish and insure, as far as
possible, public order and safety, while respecting, unless absolutely prevented, the laws in
force in the country.

Commenting upon this article, Hyde in his work on International Law, volume 2, pages 366, 367,
368, says:

In consequence of his acquisition of the power to control the territory concerned, the
occupant enjoys the right and is burdened with the duty to take all the measures within his
power to restore and insure public order and safety. In so doing he is given great freedom
may be partly due to circumstance that the occupant is obliged to consider as a principal
object the security, support, efficiency and success of his own force in a hostile land
inhabited by nationals of the enemy. . . .

xxx xxx xxx

The right to legislate is not deemed to be unlimited. According to the Hague Regulations of
1907, the occupant is called upon to respect, "unless absolutely prevented, the laws in force
the ordinary civil and criminal laws which do not conflict with security of his army or its
support, efficiency, and success."

In the exercise of his powers the commander must be guided by his judgment and his experience
and a high sense of justice. (President McKinley, Order to the Secretary of War, July 18, 1898, on
the occupation of Santiago de Cuba by the American forces, Moore, Dig. VII, p. 261.)

Acts of the military occupant which exceed his power tested by the criterion set forth in article 43 of
the Hague Regulations, are null and without effect as against the legitimate government. (Wheaton's
International Law, 7th ed. [1944], p. 245.)

Hall in his Treatise on Internal Law, (7th edition), discussing the extent of the right of a military
occupant, states:

If occupation is merely a phase in military operations, and implies no change in the legal
position of the invader with respect to the occupied territory and its inhabitants, the rights
which he possesses over them are those which in the special circumstances represent his
general right to do whatever acts are necessary for the prosecution of his war; in other words
he has the right of exercising such control, and such control only, within the occupied
territory as is required for his safety and the success of his operations. . . . On occupying a
country an invader at once invest himself with absolute authority; and the fact of occupation
draws with it as of course the substitution of his will for previously existing law whenever
such substitution is reasonably needed, and also the replacement of the actual civil judicial
administration by the military jurisdiction. In its exercise however this ultimate authority is
governed by the condition that the invader, having only a right to such control as is
necessary for his safety and the success of his operations, must use his power within the
 limits defined by the fundamental notion of occupation, and with due reference to its transient
character. He is therefore forbidden as a general rule to vary or suspend laws affecting
property and private personal relations, or which regulate the moral order of the community. .
. . (Pages 498, 499.)

We deduce from the authorities that the power of the occupant is broad and absolute in matters
affecting his safety. But in affairs which do not affect the security, efficacy, and success of his
military operations, his power is qualified by the transient character of his administration. He is
forbidden "to vary or suspend laws affecting property and private personal relations, or which
regulate the moral order of the community." Unless absolutely prevented, he is bound to laws, and
civil and criminal, in force in the country.

Tested by this criterion, was it within the power or competence of the Commander in Chief of the
Japanese army of occupation of the Philippines to promulgate Ordinance No. 7? In so far as said
ordinance created new court of special criminal jurisdiction we think his power to promulgate and
enforce it during the occupation cannot be seriously disputed; but in so far as that ordinance varied
radically our law of criminal procedure and deprived the accused of certain rights which our people
have always treasured and considered inviolate, we are of the that it transcended his power or
competence. We base this opinion upon the following considerations:

1. The occupant was not absolutely prevented from respecting our law of criminal procedure and the
Court of Special and Exclusive Criminal jurisdiction. The application or nonapplication of said law did
not affect the security, efficacy, and success of his military operations. The crimes over which the
said court was vested with jurisdiction were mostly crimes against property penalized in our Revised
Penal Code, which crimes did not affect the army of occupation. As to the illegal possession of
firearms the City Fiscal himself, who the validity of the ordinance, informs us that the occupant did
not avail himself of said court but punished his enemies direct without recurring to the agencies of
the "Republic"; and he further informs us that "as regards food control, the Japanese forces did not
have any need of the measures or agencies established by "Republic", nor did they make use of
them.

2. The summary procedure prescribed in Ordinance No. 7 was inquisitorial, repugnant to the
humanitarian method of administering criminal justice adopted by all progressive, democratic, and
freedom-loving countries of the world, and, therefore, devoid of that high sense of justice by which
the military occupant must be guided in the exercise of his powers. This concept is, we think, borne
out by an examination of the following features of said procedure:

(a) Under the rule of procedure embodied in said ordinance any prosecuting officer may, on his own
volition and even without probable cause, issue a search warrant for the seizure of documents and
articles which may be regarded as evidence of an offense in violation of section 2, Rule 122 of the
Bill of Rights contained in the Constitution of the Commonwealth, which guarantees "the right of the
people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures," and prohibits the issuance of warrants except upon probable cause to be determined
by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce.

(b) The trial must be commenced within two days after the filing of the information in violation of
section 7, Rule 114, which give the accused at least two days after the plea of not guilty within which
to prepare fort trial.

(c) The presumption of innocence in favor of the accused in all criminal prosecutions until the
contrary is proved, which is likewise guaranteed by the Bill of Rights, is violated in that, after the
arraignment and before the presentation of any proof for the prosecution, the accused is interrogated
by the judge as to the facts and circumstances of the case, and if from the facts obtained by such
interrogation it should appear (to the judge) that accused is guilty a sentence of conviction may be
immediately rendered against him, thereby also depriving him of his right to meet the witnesses face
to face and of his privilege against self-incrimination.

The City Fiscal justifies this feature of the procedure by giving the following hypothetical case: "In the
house of Juan and under his bed a policeman finds a revolver. Juan is arrested and an information
for illegal possession of firearms is filed against him by the fiscal. He is brought before the judge of
the corresponding special court for the preliminary interrogatory. He is asked whether or not he
admits that the revolver was found in his house. He answers in the affirmative but says that he is not
the owner of the revolver and he does not know how it placed there. Asked whether he knows of
anybody who could have placed the revolver under his bed, he answers that it might have been
place there by a guest who slept on his bed the night previous to its discovery by the polices. He is
asked to give the name of the guest reffered to and his address, but he refuses to answers. Asked if
he has other witnesses to support his claim, he answer that he has none. As may be seen, the
evidence of guilt is complete, and there being no further evidence to be presented that may change
the result the accused may be then and there sentenced by the court. In this case, the conviction of
the accused is reasonable and fair, for his refusal to reveal the identity of his alleged guest may due,
either to the fact that there was no such guest, or that the cause for concealing his identity is worth
suffering for. Volente non fit injuria."

But to us that hypothetical case is a good illustration of the injustice of such procedure. There the
accused was convicted not because the prosecution had proved his guilt but because he was unable
to prove his innocence. His inability to prove who the owner of the revolver was, did not to our mind
prove him guilt, beyond reasonable doubt, under the circumstances. He was accused of illegal
possession of firearm, an offense punishable under the ordinance in question with imprisonment for
six to twelve years. He pleaded not guilty, for according to him the revolver was not his and he did
not know how it got into his house. He had no time to investigate and try to find out whether the
policeman himself or some the other person who wished to do him harm had planted it there, sooner
was the revolver seized than he was brought before the court and interrogated about it when he was
naturally dazed and in a state of alarm. If the law of criminal procedure had been followed, he would
have had ample time to reflect and endeavor to unravel the mystery. He could have consulted a
lawyer, and he would have been entitled to at least two days after the information was read to him to
investigate the facts and prepare for the trial. At the trial he would not have been required to answer
to any proof in his defense until the prosecution had presented its witness, principally the policeman.
His lawyer could have cross-examined the policeman and found out from him whether he had any
grudge against the accused and how he happened to search the latter's house. From the testimony
of the policeman the accused might have been enlightened as to how and by whom the revolver was
place in his house. Suppose that the policeman should say that his informant as to the presence of
the revolver under the bed of the accused was a houseboy of the latter, and suppose that houseboy
was really the one who planted the revolver because of some grievance he had against his master
but that the latter had not suspected before that his houseboy had any revolver. In view of the
revelation of the policeman he would had been able to investigate and ascertain that fact. In that he
way he could have satisfactory explained how and by whom the revolver was placed under his bed.
But under the procedure in question as outlined by the City Fiscal, the accused was of course utterly
unable to do that and was consequently doomed to at least six years' imprisonment for a crime he
had not committed.

(d) Section 6 of the Ordinance in question provided: "The decisions of the special courts herein
created shall be final except where the penalty imposed is death, in which case the records of the
particular case shall be elevated en consulta to a special division of the Supreme Court composed of
three members to be designated by the President of the Republic of the Philippines." Under our law
of criminal procedure, which the military occupant was bound to respect unless absolutely
prevented, all persons accused of any offense have the right to appeal to the Court Appeals or to the
Supreme Court. It is true that as rule that right is statutory and may be withdrawn by the legislature
except in certain cases where the right to appeal is provided in the Constitution itself, as in the cases
involving life imprisonment and death penalty; but the question here is not whether the legislative
department of the legitimate government has the power to abrogate that right but whether it was
within the competence of the military occupant to do so.

(e) In the instant case the penalty imposed upon accused by the special court, after a summary trial
was life imprisonment, and he was denied the right to have that sentence reviewed by the Supreme
Court, altho under sub-section 4, section 2, Article VIII of the Constitution of the Commonwealth, he
could not have been deprived by law of that right.

( f ) Section 7 of the Ordinance suspended the privilege of the writ of habeas corpus with respect to
persons accused of or under investigation for any of the crimes and offenses enumerated in sections
1 and 2. The Constitution of the Commonwealth prohibit the suspension of that privilege except in
cases of invasion, insurrection, or rebellion when the public safety requires it. The suspension by the
ordinance was not motivated by any one of these cases but by the necessity for waging a campaign
against certain classes of crime; martial law was not declared; and the suspension of habeas
corpus did not apply to all persons living in the specified territory (as should have been done if the
public safety required such suspension) but only to those accused of or investigated for certain
specified crimes or offenses. The result of such partial suspension was that persons accused of or
under investigation for any of the offenses specified in section 1 and 2 could be held in detention
indefinitely, whereas person accused of or under investigation for crimes other than those specified,
such for example as theft, physical injuries, homicide, murder, and parricide, had the right to demand
their release by habeas corpus after the lapse of six hours. The same discrimination holds true with
reference to the other features already noted above, namely, unreasonable searches and seizures,
summary trial, denial of the presumption innocence, self-incrimination, and denial of the right to
appeal. Such discrimination was unwarranted and unjust and was contrary to the concept of justice
prevailing in all democratic countries, where every person is entitled to the equal protection of the
laws.

3. It is apparent from the foregoing examination of the main features of the ordinance that while the
methods thus adopted may not be unusual under totalitarian governments like those of the
aggressor nations in the recent global war, they are strange and repugnant to the people of the
democratic countries which united together to defeat said aggressors and "to reaffirm faith in
fundamental human person, in the equal rights of men and women and of nations large and small, . .
. and to promote social progress and better standards of life in larger freedom." (Preamble Charter
for Peace adopted by the United Nations at San Francisco, California, June 26, 1945.) The recent
global war was a clash between two antagonistic ways of life, between facism and democracy. It
would be strange indeed if his Court, which functions under a democratic government that fought
with the other democratic nations in that war, should sanction or approve the way of life, against
which that war was fought and won the cost of million of lives and untold sacrifices.

4. The case involves the interpretation not of constitution but of international law, which "is based on
usage and opinion"; and "he who in such a case bases his reasoning on high considerations of
morality may succeed in resolving the doubt in accordance with humanity and justice." (Principles of
International Lawrence, 7th ed., pp. 12, 13.) We think the contentions for the petitioner against the
validity of the ordinance in question are in accord with humanity and justice.

Before concluding this opinion we deem it pertinent to comment on the remark of the City Fiscal that,
as stated in its preamble, the ordinance in question was promulgated in response to "an urgent
necessity for waging an immediately and relentless campaign against certain classes and expediting
the trail and determination thereof in order to hasten the re-establishment of peace and other
throughout the country and promote a feeling of security among the people conducive to the earlier
return of normalcy in our national life." We concede that the objective of the author of the ordinance
was commendable, but we think and in this we are supported by the actual result it was
unattainable thru the means and methods prescribed in said ordinance. Peace and order and
normalcy could not be restored unless the root cause of their disturbance were eliminated first. That
cause was the presence in the country of the Japanese army, which wrecked our political, social,
and economic structures, destroyed our means of communication, robbed the people of their food,
clothing, and medicine and other necessities of life, ejected them from their own homes, punished
and tortured innocent men and women, and other wise made life unbearable. The relative rampancy
of the crimes mentioned in said ordinance was but the effect of that cause. The cornering and
hoarding of foodstuffs would not for the scarcity produced by the Japanese army and the disruption
of our commerce and industries on account of the invasion. The possession of firearms was
rendered desirable to many person to defend themselves against or attack the invader. Robberies
and other crimes against property increased as a resulted of hunger and privation to which the
people were subjected by the rapacity of the Japanese. It was a delusion to expect peace and
normalcy to return without eliminating the cause of their disturbance or destruction of the Japanese
army in the Philippines an objective to which the ordinance was not addressed. So, even from the
point of view of the Filipino people and not of the Japanese army of occupation, the ordinance in
question results untenable.

Having reached the conclusion that the enactment of the procedure embodied in said ordinance for
the special court therein created was beyond the competence of the occupant, inasmuch as that
procedure was inseparable from the first part of the ordinance which creates the special court and
prescribes the jurisdiction thereof, we are constrained to declare the whole ordinance null and
void ab initio. Consequently the proceedings in said court which resulted in the conviction and
sentence of the petitioner are also void.

PARAS, J., concurring in the result:

Charged with robbery, the petitioner herein was found guilty and sentence to suffer life
imprisonment. He commenced to serve the term on August 21, 1944. Inasmuch as he was a
member of the Metropolitan Constabulary, the basis of the information was Act No. 65, passed
during the Japanese sponsored Republic of the Philippines and amending certain articles of the
Revised Penal Code. The trial was held by the then existing Court of Special and Exclusive Criminal
Jurisdiction which was authorized to conduct proceedings in a special manner. Ordinance No. 7 of
the "Republic.")

After General of the Army Douglas McArthur had issued the Proclamation dated October 23, 1944,
the Act under which the petitioner was charged and convicted stands nullified, and the original
provisions of the Revised Penal Code restored. By virtue of article 22 of the said Code, "Penal laws
shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a
habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving the same."

In the absence of other details, it may here be assumed that the offense committed is that defined in
article 294, paragraph 5, which provides as follows:
 Any person guilty of robbery with the use of violence against or intimidation of any person
shall suffer:

The penalty of prision correccional to prision mayor in its medium period in other cases.

In accordance with the provisions of the Indeterminate Sentence Law (Acts Nos. 4103 and 4225 ),
the maximum penalty that can be imposed is six months of arresto mayor.

This Court has already dismissed cases wherein the defendants were charge with the violation of
law in force at the time of the commission and trial of the crime, after said laws have been repealed
by subsequent legislation, People vs. Moran (Phil., 44 387); People vs. Tamayo (61 Phil., 226 ), and
also repeatedly released on writs of habeas corpus prisoners who, were given the benefit of
subsequent legislation either repealing statute under which they had been convicted or modifying the
same by imposing lesser penalties, Escalante vs. Santos (56 Phil., 483); Directo vs. Director of
Prisons (56 Phil., 692).

Prisoners who behave well are almost always liberated upon the expiration of the minimum penalty
fixed in the judgments of conviction or within a reasonable time thereafter. In the present case, there
being no information that the double the period of the minimum penalty that could be imposed upon
him, he should be released. As this is the effect of the decision of the majority, I concur in the result.

DE, JOYA, J., concurring:

The principal question involved in this case is the validity of the judicial proceeding held in criminal
case No. 66 of the Court of Special and Exclusive Criminal Jurisdiction, established in the City of
Manila, during Japanese occupation, under the authority of Ordinance No. 7, issued by the President
of the so-called Philippine Republic, and the effect on said proceeding of the proclamation of
General Douglas McArthur, dated October 23, 1944.

In said criminal case, herein petitioner was accused of the crime of robbery and sentenced to life
imprisonment, on August 21, 1944.

There can be doubt that the government established in this country by the Commander in Chief of
the Japanese Imperial Forces, under the name of the Philippine Executive Commission, was a de
facto government, as already held by this Court in civil case G.R. No. L-5 entitled Co Kim Cham vs.
Valdez Tan Keh and Dizon, decided on September 17, 1945 (p. 133, ante). Said government
possessed all the characteristics of a de facto government as defined by the Supreme Court of the
United States, in the following language:

But there is another description of government, called also by publicists a government de

facto, but which might, perhaps, be more aptly denominated a government of paramount
force. Its distinguishing characteristics are (1), that its existence is maintained by active
military power within the territories, and against the rightful authority of an established and
lawful government; and (2), that while it exist it must necessarily be obeyed in civil matters by
private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, as wrongdoers, for those acts, though not warranted by the laws of the
rightful government. Actual governments of this sort are established over districts differing
greatly in extent and conditions. They are usually administered directly by military authority,
 but they may be administrated, also, by civil authority, supported more or less directly by
military force. (MacLeod vs. United States [1913,] 229 U. S., 416.)

Under a de facto government, the courts of the country, under military occupation, should be kept
open, and whenever practicable, the subordinate officers of the local administration should be
allowed to continue in their functions, supported by the military force of the invader, because the
responsibility of maintaining peace and public order, and of punishing crime, falls directly upon the
commander in chief of the occupying forces. And in the performance of this duty, he may proclaim
martial law (Davis, Elements of International Law [3d.], pp. 330-332).

In occupied territory, the conquering power has a right to displace the pre-existing authority, and to
assume to such extent as it may deem proper the exercise by itself of all the powers and functions of
government. It may appoint all the necessary officers and clothe them with designated powers,
according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or
otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit
to the powers that may be exerted in such cases, save those which are found in the laws and
customs and usages of war (Cross vs. Harrison, 16 How., 164 ; Leitensdorfer vs. Webb, 20 Id., 176;
The Grapeshot, 9 Wall.[ U.S.], 129; New Orleans vs. Steamship Co., [1874], 20 Wall., [ U.S.], 287.

It is generally the better course for the inhabitants of the territory, under military occupation, that they
should continue to carry on the ordinary administration under the invader; but the latter has no right
to force them to do so. If they decline, his only rights, and it is also his duty, is to replace them by
appointees of his own, so far as necessary for maintaining order and the continuance of the daily life
of the territory: other purposes, as these of the superior judicial offices, can bide their time
(Westlake, International Law, Part II, War, 2d ed., pp. 121-123).

Though the fact of occupation imposes no duties upon the inhabitants of the occupied territory, the
invader himself is not left equally free. As it is a consequence of his acts that the regular government
of the country is suspended, he is bound to take whatever means are required for the security of
public order; and as his presence, so long as it is based upon occupation, is confessedly temporary,
and his rights of control spring only from the necessity of the case, he is also bound to alter or
override the existing laws as little as possible (Hall, International Law, 6th ed., 476).

The government established here under the Philippine Executive Commission was more in
consonance with the general practice among civilized nations, in establishing governments for the
maintenance of peace and order and the administration of justice, in territories of the enemy under
military occupation; because said government was of a temporary character.

The government subsequently established under the so-called Philippine Republic, with a new
constitution, was also of the nature of a de facto government, in accordance with International Law,
as it was established under the authority of the military occupant and supported by the armed forces
of the latter. But it was somewhat different from that established under the Philippine Executive
Commission, because the former apparently, at least, had the semblance of permanency, which
however, is unusual in the practices among civilized nations, under similar circumstances.

Under military occupation, the original national character of the soil and of the inhabitants of the
territory remains unaltered; and although the invader is invested with quasisovereignity, which give
him a claim as of right to the obedience of the conquered population, nevertheless, its exercise is
limited by the qualification which has gradually become established, that he must not, as a general
rule, modify the permanent institutions of the country (Hall, International Law, 6th ed., p. 460).
The Convention Concerning the Laws and Customs of War on Land, adopted at The Hague in 1899,
lays down (Arts. 42, 43) definite rules concerning military authority over the territory of a hostile
state. In addition to codifying the accepted law, it provides that the occupant must respect, unless
absolutely prevented, the laws in force in the country.

It will thus be readily seen that the municipal law of the invaded state continues in force, in so far as
it does not affect the hostile occupant unfavorably. The regular courts of the occupied territory
continue to act in cases not affecting the military occupation; and it is not customary for the invader
to take the whole administration into his own hands, as it is easier to preserve order through the
agency of the native officials, and also because the latter are more competent to administer the laws
of the territory; and the military occupant, therefore, generally keeps in their posts such of the judicial
officers as are willing to serve under him, subjecting them only to supervision by the military
authorities, or by superior civil authorities appointed by him (Young vs. United States, 97 U. S., 39;
24 Law. ed., 992; Coleman vs. Tennessee, 97 U. S., 509; 24 Law. ed., 1118; MacLeod vs. United
States, 229 U. S., 416; 33 Sup. Ct., 955; 57; Law. ed., 1260; Taylor, International Law, secs. 576,
578; Wilson, International Law, pp. 331-337; Hall, International Law, 6th ed. (1909), pp. 464,
465,475,476; Lawrence, International Law, 7th ed., pp. 421-413; Davis, Elements of International
Law, 3rd ed., pp. 330-332, 335; Holland, International Law, pp. 356-57, 359; Westlake, International
Law, Part II, War 2d ed., pp. 121-123).

The judicial proceedings conducted, under the municipal law of the territory, before the court
established by the military occupant are general considered legal and valid, even after the
government established by the invader had been displaced by the legitimate government of said
territory.

Thus the judgment rendered by the Confederate courts, during the Civil War, merely settling the
rights of private parties actually within their jurisdiction, not tending to defeat the legal rights of
citizens of the United States, nor in furtherance of laws passed in aid of the rebellion, had been
declared legal, valid and binding (Coleman vs.Tennessee, 97 U. S 509., 24 Law. ed., 1118;
Williams vs. Bruffy, 96 U. S., 176; Horn vs. Lockhart, 17 Wall., 570; 21 Law. ed., 660;
Sprott vs. United States, 20 Wall., 249; 22 Law. ed., 371)

When the military forces of the Confederate states were destroyed, their government perished, and
with it all its enactments. But the legislative acts of the several States forming the Confederacy stood
on a different ground, and so far as they did not impair or tend to impair the supremacy of the
national authority, or the just rights of citizens under the Federal constitution, they were considered
as legal, valid and binding (Williams vs. Bruffy, 96 U. S., 177; 24 Law. ed., 716; Ford vs. Surget, 97
U. S., 594; 24 Law. ed., 1018; United States vs. Ins. Co., 22 Wall. [ U. S.], 99; 22 Law. ed., 816;
Ketchum vs. Buckley [1878], 99 U. S.,188; Johnson vs. Atlantic G. & W. I. Transit Co., 156 U. S.,
618; 15 Sup. Ct., 520).

In the later case, the Supreme Court of the United States reaffirmed that the judicial and legislative
acts of the rebellious States, as de facto governments, should be respected by the courts, if they
were not hostile in their purpose or mode of enforcement to the authority of the national government,
and did not impair the rights of citizens under the Federal Constitution. (Baldy vs. Hunter, 171 U. S.,
388; 18 Sup. Ct., 890; Law. ed., 208.)

Under the proclamation of General Douglas MacArthur, dated October 23, 1944, declaring null and
void all laws, regulations and processes issued and promulgated by the Philippine Executive
Commission and the Philippine Republic, during Japanese occupation, said Ordinance No. 7
promulgated on March 8, 1944, creating the Court of Special and Exclusive Criminal Jurisdiction,
ostensibly for the speedy reestablishment of peace and order, and Executive Commission,
prescribing summary rules of procedure, and other allied laws, such as Act No. 65 of the puppet
republic, prescribing heavier penalties, became null and void, once the Japanese armies in the
Philippines had been defeated, as with them the de facto governments, successively established
under them, perished, and with them all their enactments and processes of a hostile character.

But there are other considerations equally important why judicial proceedings held and conducted
before the courts established by said de facto governments, under laws promulgated by them,
should be declared null and void, without violating, in the least, settled principles, judicial precedents
or public policy.

Said Ordinance No. 7 adopted as integral parts thereof said Executive Order No. 157, as well as
said Act No. 65 of the National Assembly of the puppet republic, prescribing exceptionally heavy
penalties for the crimes enumerated therein.

The principal crimes mentioned in said Ordinance No. 7 and Act No. 65 of the puppet republic and
the other allied laws are illegal possession of firearms, robbery, violations of food-control laws,
falsification malversation and bribery; and it was under said laws that herein petitioner was
prosecuted and sentenced to life imprisonment for the crime robbery.

The penalty of life imprisonment or death for robbery was aimed principally at the underground
forces resolute and determined to seize and remove stores of food provisions, whenever possible, to
prevent them from falling into the hands of the enemy.

The penalty of twelve years' imprisonment for illegal possession of firearms was directed mainly
against those underground forces, that had been receiving arms from the forces of liberation across
the seas.

Violation of food-control laws were included and used as a pretext and justification for the seizure
and confiscation of food provisions so badly needed by the invader.

And the inclusion under said Ordinance No. 7 of the crime of bribery and other was used as a cloak
to conceal its venom and make said law look innocent.

By the imposition of excessive penalties , by the denial of the remedy of habeas corpus, by
compelling the accused to testify against themselves, and by denying them the right of appeal to the
highest court of the land, except where the death penalty was imposed, and by its summary
procedure, said Ordinance No. 7 and the other allied laws impaired and defeated the just and legal
rights of Filipino citizens under the Commonwealth Constitution, and the supremacy of the authority
of the legitimate Government. Under said laws, the persons accused were deprived of liberty without
due process of law.

In the language of this Court, "the phrase 'due process of law' used in the Philippine Bill should
receive a comprehensive interpretation, and no procedure should be treated as unconstitutional
which makes due provision for the trial of alleged criminal before a court of competent jurisdiction,
for bringing the accused into court and notifying him of the cause he is required to meet, for giving
him an opportunity to be heard, for the deliberation and judgement of the court, and for an appeal
from such judgement to the highest tribunal" (United States vs. Kennedy, 18 Phil., 122).

In their conception, in their purpose and mode of enforcement and execution said laws were hostile
to the authority of the Commonwealth Government and that of the United States of America; as they
had been promulgated in furtherance of the war aims of the enemy, and they are, therefore, of
political character and complexion.
Those repressive laws were aimed at the men and women who had kept the faith, and whose
heroes and martyrs now lie in graves still unknown and whose names remain unsung; but whose
heroic efforts and sacrifices have made immortal the legends of Filipino resistance, and made
possible our participation in the councils of free and liberty-loving peoples and nations.

Said laws are contrary to the principles of Democracy, championed by North America, whose
gigantic efforts and heroic sacrifices have vindicated human rights, human dignity and human
freedom, and consecrated them anew all over the earth with the generous blood of her children.
They violate the fundamental principles of Justice for which civilized Mankind stands, under the
benign leadership of Totalitarianism and given all the nations of the earth a new birth as well as a
new character of freedom, to enable each and everyone to live a nobler and more worthy life and
realize the justice and prosperity of the future.

For the foregoing reasons, I concur in the dispositive part of the opinion prepared by Mr. Justice
Feria.

PERFECTO, J., concurring:

On October 21, 1944, petitioner William F. Peralta began to serve, in the Muntinglupa Prison Camp,
a sentence of life imprisonment imposed by the Court of Special and Exclusive Criminal Jurisdiction,
created by Ordinance No. 7 issued by President Laurel of the Republic of the Philippines under the
Japanese regime, and now seeks a writ of habeas corpus in order that his liberty may be restored to
him, contending that said Ordinance No. 7 was null and void ab initio because it was of a political
complexion and its provisions are violative of the fundamental laws of the Commonwealth of the
Philippines.

Petitioner alleges that sometime in the month of September, 1943, he joined the Constabulary forces
as a private, against his will, and before joining it, he was for several times arrested and maltreated
as a guerrilla member, he being then a minor only 17 years old, and that he was prosecuted, not
because he committed any crime, but because he joined the guerrilla organization, deserted the
Constabulary forces, and followed political and military activities in open allegiance to the
Commonwealth Government and the United States of America.

The Solicitor General, appearing in behalf of respondent Director of Prisons, answered the petition
agreeing that the acts and proceedings taken and had before said Court of Special and Exclusive
Criminal Jurisdiction should be denied force and efficacy, and therefore, recommended that the writ
prayed for be granted.

At the hearing held on September 21, and 22, 1945, there appeared to argue the First Assistant
Solicitor General, impugning the validity of said Ordinance No. 7, and the City Fiscal of Manila,
as amicus curiae, who sustained the validity if the said Ordinance and the proceeding by virtue of
which petitioner was sentenced to life imprisonment.

I. ORDINANCE NO. 7 AND PROCESSES UNDER IT NULLIFIED BY THE OCTOBER

PROCLAMATION OF GENERAL MACARTHUR
On October 23, 1944, General of the Army Douglas MacArthur, Commander in Chief of the
Philippine-American Forces, which fought in Bataan and later liberated the whole Philippines, as an
aftermath of the liberation, issued a proclamation declaring:

1. That the Government of the Commonwealth of the Philippines is, subject to the supreme
authority of the Government of the United States, the sole and only government having legal
and valid jurisdiction over the people in areas of the Philippines free of enemy occupation
and control;

2. That the laws now existing on the statute books of the Commonwealth of the Philippines
and the regulations promulgated pursuant thereto are in full force and effect and legally
binding upon the people in areas of the Philippines free of enemy occupation and control;
and

3. That all laws, regulations and processes of any other government in the Philippines than
that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control.

It appears that Ordinance No. 7 in question has been issued under the Japanese regime and that
the judicial process under which petitioner has been sentenced to life imprisonment, having been
held in a court not belonging to the Commonwealth of the Philippines but organized and established
under the authority of the enemy, became null and void and without effect since October 23, 1944,
by virtue of the above-quoted October Proclamation of General MacArthur.

We have explained at length our position as to the effects of said October Proclamation in our
dissenting opinion in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5,
153, ante), and we deem it unnecessary to repeat what we stated in said opinion.

It is fortunate that all the members of the Supreme Court arrived at a unanimous conclusion as to the
absolute nullity of the process under which petitioner is now being held in prison.

The shocking character of the provisions of Ordinance No. 7 and the processes held under it show
once more how General MacArthur was absolutely right and justified in issuing the October
Proclamation.

There are indications that more processes held under the Japanese regime will come to our
knowledge, revealing strong grounds for their annulment, justifying, like the process here in
question, the wisdom of the decision of General MacArthur in nullifying in a sweeping manner all
judicial processes held during enemy occupation.

The October Proclamation is, in keeping with the following official statement of the President of the
United States:

On the fourteenth of this month, a puppet government was set up in the Philippine Islands
with Jose P. Laurel, formerly a justice of the Philippine Supreme Court as president. Jorge
Vargas, formerly a member of the Philippine Commonwealth Cabinet and Benigno Aquino,
also formerly a member of that cabinet, were closely associated with Laurel in this
movement. The first act of the new puppet regime was to sign a military alliance with Japan.
The second act was a hypocritical appeal for American sympathy which was made in fraud
and deceit, and was designed to confuse and mislead the Filipino people.
 I wish to make it clear that neither the former collaborationist "Philippine Executive
Commission" nor the present Philippine Republic has the recognition or sympathy of the
Government of the United States. . . .

Our sympathy goes out to those who remain loyal to the United States and the
Commonwealth that great majority of the Filipino people who have not been deceived by
the promises of the enemy. . . .

October 23, 1943

FRANKLIN DELANO ROOSEVELT

President of the United States

(From U. S. Naval War College, International Law Documents, 1943, pp. 93, 94.)

Putting aside the October Proclamation, by a mere perusal of the ordinance in question, we will see
immediately how such law and the processes held under it are incompatible with the fundamental
principles and essential safeguards in criminal procedure, universally recognized in civilized modern
nations and how such ordinance and processes can only be justified by a retrogressive and
reactionary mentality developed under the social, cultural, and political atmosphere of the era of
darkness.

II. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST UNREASONABLE

SEARCHES AND SEIZURES

Section 5 of Ordinance No. 7 provides that cases arising under it shall follow the summary
procedure provided in Act No. 65 of the Laurel Philippine Republic, which, in turn, is the same as
that established by Chapter II of Executive Order No. 157 of the Chairman of the Vargas Philippine
Executive Commission, dated May 18, 1943.

Under said procedure, "search warrants may be issued by the court or by any prosecuting officer,
authorizing peace officers to search for and seize any articles or objects described in the warrant,
including those which may be regarded as evidence of an offense under this order even if such
articles or objects are not included among those described in section 2, Rule 122, of the Rules of
Court." This provision is repugnant to the Filipino sense of right in the matter of warrants of search
and seizure, sense of right which has been clearly and definitely stereotyped in the following words
of our fundamental law:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizure shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complaint and witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized. (Art. III, sec. 1, No. 3,
Constitution of the Philippines.)

This constitutional provision is violated by the summary, unreasonable, and arbitrary procedure
provided under the authority of the ordinance in question:

(1) By authorizing "any prosecuting officer" to issue search warrants, when under our Constitution
such search warrants should be issued only by a judge;
(2) By trespassing the limits established by section 2, Rule 122, of the Rules of Court, considered as
a necessary element to make the warrant reasonable;

(3) By authorizing the search and seizure of articles or objects not described in warrant, which is the
real meaning of the words "including those which may be regarded as evidence of an offense under
this Ordinance."

III. DISCRIMINATORY AND INIQUITOUS SUSPENSION OF THE WRIT OF HABEAS

CORPUS

Section 7 of Ordinance No. 7 in question provides that "the privileges of the writ habeas corpus are
hereby suspended with respect to persons accused of, or under investigation for, any of the crimes
and offenses enumerated in sections 1 and 2 hereof."

This provision is also violative of one of the fundamental guarantees established in the Constitution
of the Philippines, which provides that the writ of habeas corpus may be suspended only in case of
"invasion, insurrection, or rebellion" and only "when the public safety requires it."

The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any of which events
the same may be suspended wherever during such period the necessity for such suspension
shall exist. (Art. III, sec. 1, No. 14, Constitution of the Philippines.)

Again, it is evident that the ordinance in question is repugnant to the deep sense of right of our
people. It is so, not only because it suspends the privilege of the writ of habeas corpus, without the
circumstances which can only justify said suspension, but because it flagrantly violates the
fundamental principle of equality before the law, by depriving the accused, in cases falling under the
ordinance in question, of the privilege of the writ of habeas corpus, which is not denied to the
accused in all other cases:

No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws. (Art. III, sec. 1, No. 1, Constitution of
the Philippines.)

IV. VIOLATION OF THE CONSTITUTIONAL GUARANTEE AGAINST SELF-

INCRIMINATION

Under section 18 of Executive Order No. 157, above mentioned, "the accused or his
representative may be examined by the court, and with the permission of the court, by the fiscal or
other prosecuting officer as to any matters favorable or unfavorable to him of his principal."
(Emphasis ours.)

It is also provided that "statements made by the accused, his co-accused, or the representative of
the accused or a person acting in a similar capacity, irrespective of the circumstances under which
they were made shall be admissible in evidence if material to the issue." (Emphasis ours.)

Under section 21 of Executive Order No. 157, after arraignment and plea, "the judge shall
interrogate the accused . . . as to facts and circumstances of the case in order to clarify the points in
dispute and those which are admitted." In the same section it is also provided that "refusal of the
accused to answer any questions made or allowed by the court may be considered unfavorable to
him." (Emphasis ours.)
Under the same section the absence of an accused or of his representative "shall not be a ground
for interrupting the proceedings or attacking the validity of the judgment."

From the foregoing, it appears:

(1) That the accused may be examined by the court or any prosecuting officer as to any matters
favorable or unfavorable to him;

(2) That the refusal of the accused to answer may be considered unfavorable to him;

(3) That statements made by the accused, "irrespective of the circumstances under which they were
made" (that is, even under third degree procedure, or exacted through brutal kempei tortures), shall
be admissible in evidence;

(4) That not only the accused, but "his representative" (his lawyer, whose personal security was
jeopardized under the Japanese regime), may be examined by the court or by the fiscal or other
prosecuting officer, as if said representative or attorney is facing the same criminal prosecution
instituted against his client;

(5) That the statement made by said representative or attorney, although exacted under duress,
intimidation, or torture, shall be admissible in evidence;

(6) That statements made by any person acting in a similar capacity as a representative of the
accused which may be a relative or a friend or, even an impostor who might pose as a
representative to assure the doom of the accused, "irrespective of the circumstances under which
they were made (that is, even if made in the absence of the accused, or in the same circumstances
under which masked spies decreed the death of innocent citizens pointed by them during zoning
concentrations), shall be admissible in evidence;

(7) That trial shall proceed in the absence of the accused;

(8) That trial shall proceed in the absence of his attorney or other representative.

It is evident that the procedure established violates the following provisions of our fundamental code:

In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

No person shall be compelled to be a witness against himself. (Art. III, sec. 1, No. 18, Idem.)

The procedure is so revolving, so nauseating, and so opposed to human nature, that it takes a real
courage to keep our equanimity while we are compelled to analyze it.

It is beyond our comprehension how a man, endowed with reason, could devise such an execrable
system of judicial procedure, which is but a shameless mockery of the administration of justice.

We must be very careful to retain zealously the constitutional guarantee against self-incrimination.
We must not forget that that constitutional guarantee was acquired as a result of protest against all
inquisitorial and third degree procedures. We must not forget how, not very long ago, in the thirteen
colonies of America, alleged witches were burned at the stake, as a means of compelling them to
confess their fantastic compacts with the devil. We must not forget how an institution created in the
twelfth century was the cause of so much tortures and sufferings, and that the terroristic menace of
its rakes was abolished in Spain, and therefore in Philippines, only in 1834.

We must not forget that during normal times, under the twentieth century lights, just before the last
global war started, in the United States of America and in the Philippines, denunciations of third
degree procedures employed by agents the law were often heard. This very Supreme Court, not
only once, had to deal with cases where such tactics were conclusively proved. Even today, among
criminal cases we have under consideration, there is evidence of confessions exacted through cruel
and brutal means.

No matter what merits can be found, from the theoretical point of view, in the arguments of those
who are championing the suppression of the constitutional guarantee against self-incrimination, the
undeniable reality of human experience shows conclusively the absolute need of such guarantee if
justice must be served. Even with the existence of such guarantee, there are officers of the law who
cannot resist temptation of using their power to compel, through third degree methods, innocent or
guilty persons to admit involuntarily real or imaginary offenses. Let us allow changes tending to
nullify the protection against self-incrimination, and no man, however innocent he may be, shall be
secure in his person, in his liberty, in his honor, in his life.

V. THE FUNDAMENTAL RIGHT OF APPEAL TRAMPLED UPON

In section 6 of Ordinance No. 7, it is provided that "the decision of the special courts herein created
shall be final except where the penalty imposed is death, in which case the records of the particular
case shall be elevated en consulta to a special division of the Supreme Court composed of three
members to be designated by the President of the Republic of the Philippines."

This provision is a clear violation of the fundamental right of appeal, constitutionally guaranteed to all
accused in the Philippines. Under the Constitution of the Philippines, all accused are entitled to
appeal to the Supreme Court:

(1) In all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive
order or regulations is in question. (Art. VIII, sec. 2, No. 1, Constitution of the Philippines.)

(2) In all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto. (Art. VIII, sec 2, No. 2, Idem.)

(3) In all cases in which the jurisdiction of any trial court is in issue. (Art. VIII, sec. 2, No. 3, Idem.)

(4) In all criminal cases in which the penalty imposed is death or life imprisonment. (Art. VIII, sec. 2,
No. 4, Idem.)

(5) In all cases in which an error or question of law is involved. (Art. VIII, sec. 2, No. 5, Idem.)

Before the adoption of the Constitution of the Philippines, it was the prevailing theory in judicial
decisions that the right of appeal is not a fundamental one, but it is a mere privilege or mere
statutory grant.
The drafters of our Constitution, taught by the unerring lessons of human experience, came to the
conclusion that mistake is one of the most irretrievable human weaknesses.

The drafters of our Constitution, therefore, considered it necessary to establish constitutional

guarantees to reduce to its minimum the effects of such innate human weakness by providing that
the appeal to the highest tribunal of the land may be enjoyed by any accused, who, under the
specific provisions of the Constitution, believed himself to be the victim of a wrong in any inferior
court.

The fact that the provisions of section 2, of Article VIII, of the Constitution, instead of stating that the
accused shall not be denied of the right of appeal in the cases mentioned therein, provide that the
Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on
appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts, in the specified cases, does not impair nor diminish the fundamental
character of the right of appeal of the accused to the Supreme Court.

The provisions of section 2, of Article VIII, of the Constitution, have been enacted by our
Constitutional Convention, not for the benefit and well-being of the people.

In fact, the Supreme Court is just one of the instrumentalities created by the Constitution in the
service of the people. The Supreme Court is not an entity or institution whose rights and privileges
must be constitutionally guaranteed. It is only a means. It is one of the means considered necessary
by our Constitution to better serve the supreme interest of the people.

As a matter of fact, the Supreme Court of the United States itself declared that the elimination of said
tribunal is not incompatible with the existence of a government of laws. In a case of denaturalization
wherein the Government of the United States sought to deprive a person of his American citizenship,
on the ground that the 1928 platform of the Communist Party of the United States, to which the
respondent belonged, advocated the abolition of the supreme Court, of the Senate and the veto
power of the President, and replacement of congressional districts with "councils of workers" in
which legislative and executive powers would be united, the Federal Supreme Court declared:

These would indeed be significant changes in our governmental structure changes which
it is safe to say are not desired by the majority of the people in this country but whatever
our personal views, as judges we cannot say that person who advocates their adoption
through peaceful and constitutional means is not in fact attached to the Constitution those
institutions are not enumerated as necessary in the government's test of "general political
philosophy", and it is conceivable that "orderly liberty" could be maintained without them. The
Senate has not gone free of criticism and one object of the Seventeenth Amendment was to
make it more responsive to the popular will. The unicameral legislature is not unknown in the
country. It is that this Court has played a large in the unfolding of the constitutional plan
(sometimes too so in the opinion of some observers), but we be arrogant indeed if we
presume that a government of laws, with protection for minority groups would be impossible
without it. Like other agencies of government, this Court at various lines its existence has not
escaped the shafts of critics whose sincerity and attachment to the Constitution is beyond
question critics who have accused it of assuming functions of judicial review not intended
to be conferred upon it, or of abusing those function to thwart the popular will, and who
advocated various remedies taking a wide range. (Schneiderman vs. United States of
America, June 21, 1943.)

VI. ABRIDGMENT OF THE CONSTITUTIONAL GUARANTEE OF EQUAL PROTECTION

OF THE LAWS
The constitutional guarantee of equal protection of the laws is evidently abridged in the summary
procedure in criminal cases under Ordinance No. 7:

(1) By the fact that the accused therein are victims of search warrants specially provided for them,
where the guarantees against unreasonableness in search warrants issued against other accused
are specially eliminated.

(2) By depriving the accused, under the Ordinance No. 7, the privilege of the writ of habeas
corpus enjoyed by the accused in other cases.

(3) By depriving the accused, under Ordinance No. 7 of the fundamental right of appeal in all cases,
except when sentenced of death is imposed.

(4) By discriminating against the accused, under Ordinance No. 7, where the right of appeal is
retained for them, that is, in cases where the sentenced imposed is death, by entrusting the power to
revised said sentence to small minority of the Supreme Court, under the Japanese regime, and a
minority of three justices to be specially called out by the President of the Laurel Philippine Republic,
undoubtedly with the evident purpose of the confirmation of the conviction of the accused, and to
make the appeal en consulta just an empty gesture to make the situation of the accused more pitiful
by lengthening is days of agony.

(5) By placing the accused, in the case in question, under the sword of Damocles of an unfavorable
presumptions, should he refuse to answer any question that the court or any prosecuting officer
might propound to him.

Under our constitution, no one shall be deprived of the "equal protection of the laws". (Art. III, sec. 1,
No. 1, Constitution of the Philippines.)

VII. THE PRESUMPTION OF INNOCENCE OF THE ACCUSED IN ALL CRIMINAL

PROSECUTIONS VIOLATED

Since the American flag began to fly over our soil, the fundamental guarantee that in all criminal
prosecution the accused shall be presumed innocent until the contrary is proved beyond all
reasonable doubt, has been implanted in our country to remain forever.

That guarantee was consecrated in our Constitution:

In all criminal prosecution the accused shall be presumed to be innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and a public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf. (Art. III, sec. 1, No. 17, Constitution of the Philippines.)

This guarantee is undoubtedly violated when, in the summary procedure established by Ordinance
No. 7, it is provided that the refusal of the accused to answer any question, propounded by the court
or any officer, "may raise unfavorable presumption against him."

If we have to keep democracy in our country, we must be vigilant in upholding the constitutional
principle that all persons shall be presumed to be innocent until the contrary is proved beyond all
reasonable doubt.
This principle is the opposite of that prevailing under autocracies, or under facist or totalitarian
regimes. During the Japanese occupation all persons who might fall under the suspicion of any
Japanese or their spies and lackeys, were presumed to be guilty of any imaginary crime until they
were able to convince their victimizers of the contrary, beyond any reasonable doubt. Even then,
they were submitted to preventive tortures and long months of imprisonment, just in case they might
think later of committing any offense against the Japanese or their collaborators.

VIII. ORDINANCE NO. 7 VIOLATED THE HAGUE CONVENTION OF 1899

In the convention concerning the laws and customs of war on land, adopted by the Hague in 1899, it
is provided that the military occupant must respect the laws in force in the occupied country, unless
absolutely prevented. (Arts. 42 and 43.)

The provision of the Convention has been flagrantly violated when, under the enemy occupation the
Laurel Philippine Republic enacted Ordinance No. 7 which suspended our laws, including the
fundamental one, by substantially subverting the judicial procedures in the special criminal cases
instituted under said ordinance.

For this reason, said ordinance, being violative of international law, was null and void ab initio.

Under international law, under the most elemental principles of law, the legitimate government, once
restored to its own territory, after expelling the enemy invader, enjoys the absolute freedom of not
recognizing or of nullifying any and all acts of the invader, including those internationally legal ones.
The situation is exactly the same as that of the owner of the house who can do anything in it that
pleases him, after expelling the bandit who was able to usurp its possession for a while.

General McArthur exercised correctly that power by the sweeping nullification decreed in his October
Proclamation.

But even without the October Proclamation, the judicial process maybe it is better to say injudicial
process which resulted in the imprisonment of petitioner, must be shorn of all effects because it
had taken place under the authority of an ordinance which was null and void ab initio.

IX. THE DECISION CONVICTING THE PETITIONER HAVING BEEN RENDERED UNDER
FOREIGN AUTHORITY IS UNENFORCEABLE

The decision by which petitioner William F. Peralta was convicted and is being confined for life
having been rendered by a tribunal created, functioning, and acting under the authority of a foreign
State, the Emperor of the Imperial Government of Japan, is unenforceable.

It has, therefore, the nature of a foreign decision or judgment. For that reason, it is unenforceable
within the Philippines or under the Commonwealth, as we have shown in our opinion in the case
of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. 5, p. 153, ante)

Said decision, having been rendered under Ordinance No. 7, which was null and void ab initio,
carries the same vice as the ordinance under which it was rendered.

But even admitting arguendo that said decision is valid, because it is so under international law, and
is not included in the nullification decreed by General Douglas MacArthur, still it cannot be enforced,
being a foreign decision. A foreign decision can only be enforced through the institution of an action
before our tribunals. Even decisions of a court of the United States or of any of its States or
territories can be enforced in the Philippines only by the institution of an action or special proceeding
before our own courts. This theory is confirmed by sections 47 and 48, Rule 39, of the Rules of
Court, which read:

SEC. 47. Effect of record of a court of the United States. The effect of a judicial record of
a court of the United States or of a court of one of the States or territories of the United
States, is the same in the Philippines as in the United States, or in the States or territory
where it was made, except that it can only be enforced here by an action or special
proceeding, and except, also, that the authority of a guardian, or executor, or administrator
does not extend beyond the jurisdiction of the Government under which he was invested with
his authority.

SEC. 48. Effect of foreign judgments. The effect of a judgement of a tribunal of a foreign
country, having jurisdiction to pronounce the judgement, is as follows:

(a) In case of a judgement against a specific thing, the judgment is conclusive upon the title
to the thing;

(b) In case of a judgement against a person, the judgement is presumptive evidence of a

right as between the parties and their successors in interest by a subsequent title; but the
judgement may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.

X. THE STUNNING FACTS REVEALED IN THE REPORT OF THE DIRECTOR OF

PRISONS.

At the hearing of this case, respondent Director of Prisons was required to submit statistical data
concerning the number of prisoners and the various crimes for which they were convicted by the
Court of Special and Exclusive Criminal Jurisdiction.

In submitting said statistical data, the Solicitor General, as counsel for respondent, calls our attention
to the fact that, out of the 92 prisoners committed by said courts to the Bureau of Prisons for
confinement, fifty-five (55), that is more than one-half, were convicted of illegal possession of
firearms, and that only 3 are now actually in confinement serving sentences, among them the
petitioner in this proceeding, thus dissipating the unfounded fear entertained by the City Fiscal of
Manila, to the effect that a pronouncement by this Supreme Tribunal that the sentences of the courts
in question are null and void, will signify the release of hundreds of criminals, whose liberty and
mixing with society will endanger public peace and order.

Of the other two remaining prisoners serving sentence, one has been committed for evasion of
service of sentence, and the other for illegal possession of firearms.

Of the 55 prisoners convicted for illegal possession of firearms, 25 died, 23 were released, and 6
escaped, and this is the reason why only one remains in confinement.

It is striking that so many prisoners died, 25 of those convicted for illegal possession of firearms, that
is, almost 50% of them, 33 of the total of 94 prisoners committed, or more than one-third of them.
This unusual and shocking percentage of mortality is worth inquiring into and, certainly, cannot be
counted very favorably to judicial proceedings which eventually lead to such wholesale death, if not
outright massacre.
The fact that a big number of the prisoners, 21 of them, were able to escape, was not explained to
us. Is it reasonable to surmise, from the ruthless cruelty of the proceedings and of the penalties
imposed, which exacted from the mouth of the First Assistant Solicitor General, who appeared to
argue the case in behalf of the respondent, the adjective "ferocious", that the wardens themselves,
moved by pity, directly or indirectly helped the escape?

More than one-third of the prisoners committed by the said courts in confinement to the Bureau of
Prisons, that is, 33 of them died. May we ask if they died because they were executed? Of those
who died, one was convicted of profiteering in rice, one of robbery, one of kidnapping of minor, one
of violation of certain sections of Act No. 66, four of crimes against public order, and 25 of
possession of firearms. If all of them were executed by virtue of sentences rendered by the courts in
question, that fact does not speak very highly of their proceedings. If the accused died by natural
death, there must be something physically or morally fatal in said proceedings.

If a tree must be judged by the fruits it bears, how shall we judge proceedings so deadly, so fatal, so
wantonly inhuman as the proceedings had in the special courts in question?

The City Fiscal of Manila exerted great efforts to show that the fact that in the proceedings in
question "the refusal of the accused to answer any question made or allowed by the court may be
considered unfavorable to him," does not violate the constitutional guarantee against self-
incrimination. He even goes to the extent of maintaining the theory that such constitutional
guarantee is not essential for the protection of the substantial rights of an accused.

His argument centered on the alleged freedom of the accused to refuse to answer any question
made or allowed by the court, alleging that, if the accused chooses to refuse to answer, the court
cannot compel him to answer under menace of punishment for contempt or through any other
coercive or minatory measures.

The City Fiscal seems to labor under the belief that the fact that the silence of the accused "may be
considered unfavorable to him", is of no consequence at all.

Such belief can logically be entertained alone by ignoring completely the lessons of experience in
human conduct.

If the refusal to answer can be considered unfavorably to the accused, is not that the same as
placing him on the hard predicament of choosing between testifying self-incriminating and risking the
fatal effects of a legal presumption of guilt? Is not that the same as placing him between the two
steel cages of a dilemma: self-incrimination or presumption of guilt? Is not that the same as placing
him between Scylla and Charybdis, between a dagger and a wall? Either way, he will always find
himself under the inexorable sword of Damocles of sure punishment, whether he testifies or refuses
to testify. It is not impossible to open a debate upon the abstract question whether the constitutional
guarantee against self-incrimination should not remain. But the value of such a moot question, for
purposes of this case, is nil.

The constitutional guarantee had to be adopted as a protest against inquisitorial method of the past,
when accused and suspects were submitted to the most brutal torture to compel them to confess
real or imaginary crimes. That past is not far away. It seems that we are still smelling the stench of
human flesh burned in the stakes, where suspected witches suffered iniquitous death.

There is no doubt that the procedure in question shows the purpose of pandering to the most
flagitious doctrines in criminal proceedings. The transgressions of the bill of rights in all its phases
cannot be hidden even to a chela in constitutional law. It is the very negation of the administration of
justice. Such procedure has absolutely no place in the framework of our juridical system. We will feel
mere whifflers in our professed convictions, principles, and creed, if we should permit ourselves to
fall into the weakness of abetting it even for a moment, which could only happen once the flambeau
of reason has ceased completely to burn. No one but the truckling lackeys of the arrogant enemy
could have the servility of applauding the implantation of the criminal procedure in question.

All arguments and dissertations are useless to conceal the real fact. Behind and under said criminal
process stealthily crawls and trundles the Nippon psychosis, like a cobra with fangs overflowing with
venom. To ferret it out from the hole where it lurks, waiting for its victims, and crush its head with one
hammer blow, is an imperative measure of national self-defense.

XI. THE PETITIONER IS ENTITLED, AS A MATTER OF ABSOLUTE RIGHT, TO

IMMEDIATE RELEASE

After showing the absolute nullity of the judicial process under which petitioner has been convicted
to suffer the penalty of life imprisonment, the inevitable consequence is that he is entitled, as a
matter of absolute right, to be immediately released, so that he can once again enjoy a life of
freedom, which is the natural boon to law-abiding residents of our country, and of which he was
unjustly deprived through means most abhorrent to human conscience.

We must not hesitate for one moment to do our duty in this case. The sooner we comply with it, the
better. The process and judgement under which petitioner has been convicted and is now
undergoing an unjust imprisonment, is one of the hateful vestiges left in our country by the moral
savagery of a people spiritually perverted and debased. The seriousness of this matter cannot be
viewed with insouciance. We must not lose time to wipe out such vestiges if we must protect
ourselves against their poisonous effects in our political, social, and cultural patrimony.

We must erase those vestiges if we want to keep immune from all germs of decay the democratic
institutions which are the pride of our people and country, under which we are enjoying the blessings
of freedom and with which we hope to assure the well-being and happiness of the unending
generations who will succeed us in the enjoyment of the treasures accumulated by a bountiful nature
in this Pearl of the Orient.

If we allow such vestiges to remain we are afraid that some historian may write about Philippine
democracy, Philippine race, and Philippine culture, what, on ancient art, Hegel said in the
"Phenomenology of the Spirit", according to Kohler, the greatest work of genius that the nineteenth
century has produced:

The statues set up are corpses in stone, whence the animating soul has flown; while the
hymns of praise are words from which all belief has gone. The tables of the gods are bereft
of spiritual food and drink, and from his games and festivals, man no more receives the joyful
sense of his unity with the Divine Being. The works of the muse lack the force and energy of
the Spirit which derived the certainty and assurance of itself just from the crushing ruin of
goods and men. They are themselves now just what they are for us beautiful fruit broken
off the tree, a kindly fate has passed on those works to us, as a maiden might offer such fruit
off tree. It is not their actual life as they exist, that is given us, not the tree that bore them, not
the earth and the elements, which constituted their substance, nor the climate that
determined their constitutive character, nor the change of seasons which controlled the
process of their growth. So, too, it is not their living world that fate preserves and gives us
with those works of ancient art, not the spring and summer of that ethical life in which they
bloomed and ripened, but the veiled remembrance alone of this reality.
Our sense of national self-preservation compels us, as an imperative duty, not only to restore
immediately the petitioner to his personal liberty, but, all possible means, to obliterate even the
memory of the inquisitorial summary procedure depicted in the present case.

Such procedure exhibits either inversion, retroversion, subversion, or perversion of elemental human
concepts. It ignores completely and debases the high purposes of a judicial procedure. It represents
a hylistic ideology which proclaims the supremacy of the state force over fundamental human rights.
We must never allow the neck of our people to be haltered by the lethal string of that ideology. It is a
virus that must be eliminated before it produces the logical disaster. Such ideology is a cancerous
excrescence that must be sheared, completely extirpated, from the live tissues of our body politic, if
the same must be saved.

We cannot understand how any one can justify the summary process in question under the
principles embodied in our Constitution. To profess attachment to those principles and, at the same
time, to accept and justify such kind of criminal miscarriage of justice, is just sheer hypocrisy. It is a
repetition of what Seneca did when, after preaching moral virtues, justified without any compunction
the act of Nero, the sanguinary Roman Emperor, of murdering in cold blood his own mother. It is
reproducing the crooked mentality of Torquemada, who, upon the pretext of combating and
persecuting heresy to save souls from hell, conceived the diabolical idea of condemning their victims
to an advanced version of hell in this life, and among those who suffered under the same spirit of
intolerance and bigotry which was its very essence are counted some of the greatest human
characters, such as Galileo, Giordano Bruno, and Girolamo Savonarola. That procedure might find
justification in the thick heads of the Avars, Huns, Vandals, and Teutons, or in the stratified mentality
of Japanese cullions, but not in a healthy mind of a cultured person of modern times. To allow any
vestige any vestige of such procedure to remain is tantamount to reviving the situation during which
our citizens endured sleepless nights in constant fear of the hobnail terror stalking in the darkness,
when their personal security and their life were hanging by the thin of chance.

We wish a way could be found to free completely our people of the sense of shame, which they
cannot help feeling, engendered by members of our race who justified such abhorrent summary
procedure and allowed themselves to become a party to the execution of a scheme only acceptable
to the undeveloped mentalities of the dark ages. It is a shame that makes our blood boil when we
think that countrymen of Father Gomez, of Rizal, of Mabini, could accept procedures representing
the brutal ideology which is the very opposite of the humane, lofty, and dignified ideology that placed
said heroes and martyrs among the purest and noblest specimens that humanity produced in all
countries, in all time, for all ones and light years to come.

It is with joy and pride that we agree with all our brethren in unanimously granting petitioner the
redress he seeks in his petition.

HILADO, J., concurring:

I concur in the result, as well as in the reasons stated in the majority opinion not inconsistent with the
views expressed in my dissenting opinion in G. R. No. L-5, Co Kim Cham vs. Valdez Tan Keh and
Dizon (p. 199, ante).

However, I would additionally base my conclusion upon broader grounds.

Firstly, I reiterate here by reference the arguments advanced in said dissenting opinion in additional
support of the conclusion that the writ of mandamus herein sought should be granted. Secondly, the
importance and transcendence of the legal principles involved justify further elaboration.

From the allegations of the petition herein, it can be deduced that the petitioner William F. Peralta
was a "guerrillero" when he was arrested, tried and convicted; and that he had never voluntarily
submitted to the Japanese forces in his civil capacity.

No attempt is made in the Solicitor General's answer to controvert the facts alleged in the petition
from which the foregoing deduction flows, and from the record nothing appears which may tend to
gainsay them. Even when he was forced temporarily to join the Constabulary, which had been
organized under orders of the Japanese Army in the Philippines, he did so against his will.

Even granting for the sake of argument, and laying aside for the moment the reasons to the contrary
set forth in my aforesaid dissenting opinion, that the rules of International Law regarding the power
of a belligerent army of occupation to establish a provisional government in an occupied enemy
territory, are still binding upon the United States and the Commonwealth of the Philippines, yet such
rules would not be any avail to bind the herein petitioner by the laws, regulations, process and other
acts of the so-called "Republic of the Philippines", under and by virtue of which said petitioner has
been convicted to life imprisonment by the Court of Special and Exclusive Criminal Jurisdiction of
Manila in Criminal Case No. 66 thereof.

If we analyze the different adjudications and treatises which have been cited in support of the validity
or binding force of the acts of such provisional governments, which have been variously called de
facto governments, or governments of paramount force, with a view to finding the real ground and
philosophical justification for the doctrine therein announced, we will see that reason and that
justification are made to consist in the submission of the inhabitants upon whom the said acts have
been held to be of obligatory or binding force, to the army of occupation. Thus, to cite just a few
typical examples, we quote the following excerpts from three leading cases decided by the Supreme
Court of the United States:

Excerpts from Thorington vs. Smith (8 Wall. [U. S.], 1; 19 Law. ed., 361)

That while it (government of paramount force) exists, it must necessarily be obeyed in civil
matters by private citizens who, by acts of obedience, rendered in submission to such force,
do not become responsible, as wrong-doers, for those acts, though not warranted by the
laws of the rightful government (p. 363; Emphasis ours).

The authority of the United States over the territory was suspended, and the laws of the
United States could no longer be rightfully enforced there, or be obligatory upon the
inhabitants who remained and submitted to the conqueror. (P. 364; Emphasis ours.).

Excerpts from Fleming vs. Page (9 Howard. [U. S.], 603; 13 Law. ed., 276):

While it (Tampico) was occupied by our troops, they were in an enemy's country, and not in
their own; the inhabitants were still foreigners and enemies, and owed to the United States
nothing more than the submission and obedience, sometimes called temporary allegiance,
which is due from a conquered enemy, when he surrenders to a force which he is unable to
resist. (P. 281; Emphasis ours.)

Excerpts from United States vs. Rice (4 Wheat. [U. S.], 246; 4 Law. ed., 562):
 The sovereignty of the United States over the territory was, of course, suspended, and the
laws of the United States could no longer be rightfully enforced there, or be obligatory upon
the inhabitants who remained and submitted to the conquerors. (P. 564; Emphasis ours.)

It results from the above-quoted pronouncements of the Supreme Court of the United States that the
laws, regulations, processes and other acts of the government that the occupying belligerent
establishes are made binding only and precisely upon those inhabitants from whom obedience could
be effectively exacted, namely, those who remain within the effective reach of the occupying forces
and submit to them. This is plain common sense. Those who conceived and developed the doctrine
could not logically have thought of the army of occupation setting upon a civil government for those
who still continued resistance. As to them, further military operations would be necessary to reduce
them to submission, before one could think of civilly governing them.

In the Philippines, during the occupation by the Japanese of Manila and certain other portions of the
Archipelago, the overwhelming majority of the people never submitted to the Japanese invaders,
and never recognized any legality in the invasion of their country, and to the very date of liberation
refused to accept the alleged protection or benefits of the puppet governments of the "Philippine
Executive Commission" and the "Republic of the Philippines." The majority of our people lived in the
provinces, in the farms, hills and other places beyond the effective reach of the Japanese military
garrisons. Only a small minority submitted to the invaders for various reasons, such as their having
been caught in Manila or other parts of the Island occupying government positions, or residing
therein without adequate facilities for escaping from or evading said invaders, reasons of ill health,
disabling them from living the hard life of the mountains, hills, or country places, and the like.

To have bound those of our people who constituted the great majority who never submitted to the
Japanese oppressors, by the laws, regulations, processes and other acts of those two puppet
governments, would not only have been utterly unjust and downright illegal, but would have placed
them in the absurd and impossible condition of being simultaneously submitted to two mutually
hostile governments, with their respective constitutional and legislative enactments and institutions
on the one hand bound to continue owing allegiance to the United States and the Commonwealth
Government, and, on the other, to owe allegiance, if only temporary, to Japan. Among them we find
the petitioner William F. Peralta. The surrender of the Fil-American forces in Bataan and Corregidor
did not matter so far as this was concerned. Much less did that surrender obligate all the civil
population to submit to the Japanese, and obey all their future dictations. If it did, President
Roosevelt and President Osmea would not have so heartily commended the Philippine resistance
movement and so enthusiastically extolled the firm stand of those who participated therein, in the
former's message of October 23, 1943, and in the latter's speech of February 27, 1945, cited in the
writer's above mentioned dissenting opinion. If these historic utterances should seem incompatible
with any provision of the Hague Convention, we should understand from them that both Presidents
must have considered such provision as no longer applicable to, or binding upon, the United States
and the Philippines. Who knows but that their attitude was based upon the renunciation of war as an
instrument of national policy by their respective peoples, which renunciation necessarily includes all
the "rights" or "powers" which may be claimed to be delivered from war so employed? Or else, upon
the ground that such provisions does not support the wrongful acts of Japan in the Philippines?

Another reason advanced to justify the creation of a provisional civil government, with its courts and
other departments, in occupied enemy territory, is the alleged convenience of the civil population. It
can immediately be asserted in reply that the convenience of the above-mentioned overwhelming
majority of our people, far from requiring the establishment of such government, was in the very
nature of things positively opposed thereto. They not only did not need the supposed benefits of
such a government, but they actually reputed them as inimical to the larger interest of the very
ideology and cause for which they were continuing their resistance to those who would extend here
the brutal power and pernicious influence of the now exploded "Greater East Asia Co-Prosperity
Sphere." They suffered, yes, and suffered much but they placed that ideology and that cause high
above their private comfort. Let us not penalize them for it. If this government is democratic, and
when it comes to a question of convenience, whose will and whose convenience should prevail, that
of the majority or that of the minority? Are we going to force those free citizens of this free country to
accept the alleged benefits and assume the burdens of a government they have never consented to
own?

I am furthermore, of opinion that there is another important consideration which argues against the
recognition of the said government as a de facto government or government of paramount force
during the Japanese occupation of the Philippine Islands. Japan, in starting and prosecuting this war
against the United States and her allies by breaking the most vital rules of civilized warfare as
prescribed by International Law, must be deemed to have forfeited the right to invoke that law in so
far as specific provisions thereof would favor her or her acts. Japan in treacherously attacking Pearl
Harbor and the Philippines, successively on December 7 and 8, 1941, violated the rule providing for
the necessity of declaring war as established at the Hague Conference of 1907 (Lawrence,
Principles of International Law, 7th ed., pp. 321-322, 325); she has infringed the rule requiring that
war prisoners be cared for and treated with humanity (Ibid, p. 377); the rule imposing the obligation
to properly tend the sick and wounded (Ibid, 384), the rule interdicting bombing of open and
defenseless cities (Ibid, 522, 523) when she bombed Manila after it had been declared an open city
and all its military defenses had been removed; the rule exempting noncombatants from personal
injury (Ibid, 397) her violations of one or the other of which were matters of daily occurrence, one
might say, during her three and a half years of tyranny and oppression in this country, and were
climaxed by the ignominious and indescribable atrocities of the mass massacre of innocent civilians
during the battle for Manila. In the interpretation of doubtful provisions of International Law, Doctor
Lawrence, in his work cited above, has the following to say:

. . . If a point of Municipal Law is doubtful, men resort to supreme court for a decision, or to a
supreme legislature for an interpreting statute; but if a point of International Law is doubtful,
they can resort only to general reasoning for a convincing argument, unless, indeed, they
settle the question by blows. And International Law in many of its details is peculiarly liable to
disputes and doubts, because it is based on usage and opinion. He who in such a case
bases his reasoning on high considerations of morality may succeed in resolving the doubt in
accordance with humanity and justice. (Pp. 12, 13.).

It would seem that to deny Japan benefits, because she has refused to carry the burdens of the law,
is to base our reasoning "on high considerations of morality", and to resolve any doubt, there be, as
to the point in question, "in accordance with humanity and justice." In other words (even if we applied
said rules to the instant case), Japan, under the circumstances of this case, could not be heard to
say that the government which she established here was a de facto government, or a government of
paramount force, as in the cases where such a government was deemed to exist.

In additional to what has been said above, let us see if the Japanese-sponsored "Republic of the
Philippines" did not introduces such fundamental and drastic changes in the political organization of
this country, as it existed upon the date of the Japanese invasion, as to vitiate with invalidity the acts
of all its department, executive, judicial, and legislative. To begin with, the Commonwealth
Constitution was completely overthrown. It was replaced by the so-called constitution of the
"Republic." A casual comparison of these two instruments cannot fail to reveal a most revolutionary
transformation of the political organization of the country. While under the Commonwealth
Constitution the retention of American sovereignty over the Philippines is expressly recognized, for
the purposes specified in the ordinance appended thereto, in the very preamble of the constitution of
the "Republic" the independence " of the Philippines is proclaim. While under the Commonwealth
Constitution the President and Vice-President are elected "by direct vote of the people "Art. VII, sec.
2), under the constitution of the "Republic" the President (no Vice-President is provided for) was
elected "by majority of all the members of the Assembly" (Art. II, sec. 2). While under
Commonwealth Constitution the legislative power is vested in a bicameral Congress with a Senate
and a House of Representatives (Art. VI, sec. 1), under the constitution of the "Republic" that power
was vested in a unicameral National Assembly (Art. III, sec. 1). While under the Commonwealth
Constitution the Senators are chosen at large by the qualified electors of the Philippines (Art. VI, sec.
2) and the Representatives by the qualified electors in the respective districts (Art. VI, sec. 2) and
the Representative by the qualified electors in the respective districts (Art. VI, 5), under the
constitution of the "Republic" the National Assembly was composed of the provincial governors and
city mayors as members ex-oficio, and of delegate elected every three years, one from each and
every province and chartered city (Art. III, sec. 2), While under the Commonwealth Constitution,
respecting the Judicial Department, the members of Supreme Court and all judges of inferior courts
are appointed by the President with the consent of the Commission on Appointments of the
Congress (Art. VII, sec.), under the constitution of the "Republic" the members of the Supreme Court
were appointed by the President with the advice of the Cabinet, and all judges of interior courts, by
the President with the advice of the Supreme Court (Art. IV, sec. 4).

These changes and innovations can be multiplied many times, but the foregoing will suffice for our
purpose.

It has been said constantly in this discussion that political acts, or acts of a political complexion of
a de factogovernment of paramount force, are the only ones vitiated with nullity. Of course, I
disagree with those who so hold. But even by this test the "Republic" or, which is the same, the
Imperial Japanese Forces which gave it birth in thus introducing such positive changes in the
organization of this country or suspending the working of that already in existence, executed a
political act so fundamental and basic in nature and operation that all subsequent acts of the new
government which of course had to be based thereon, inevitably had to be contaminated by the
same vitiating defect.

Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his
control, and various acts done during the same time by private persons under the sanction of
municipal law, remain good.. Political acts on the other hand fall through as of course,
whether they introduce any positive change into the organization of the country, or whether
they only suspend the working of that already in existence. . . . (Hall, International Law, 6th
ed., p. 483; Emphasis ours.)

Finally, upon closed scrutiny, we will find that all of the de facto governments or governments of
paramount force which have been cited in all this discussion were at the same time bona
fide governments. The British established such a government in Castine, and ran it is a purely British
organization. The Americans established another such government in Tampico, and ran it as an
American organization. The Confederate States established a like government in the seceding
States, and ran it as the Government of the Confederacy. They were all frank, sincere, and honest in
their deeds as well as in their words. But what happened in this country during the Japanese
occupation? When the "Republic of the Philippines" was established on October 14, 1943, under
duress exerted by the Japanese Army, did the Japanese openly, frankly, and sincerely say that
government was being established under their orders and was to be run subject to their direction
and control? Far from it! They employed all the means they could conceive to deceive the Filipino
people and the outside world that they had given the Filipinos their independence, and that
"Republic" thereunder. But behind the curtain, from beginning to end, there was the Imperial
Japanese Army giving orders and instructions and otherwise directing and controlling the activities of
what really was their creature for the furtherance of their war aims. I cannot believe that those who
conceived and developed the doctrine of de facto government or government of paramount force,
ever intended to include therein such a counterfeit organization as the Japanese contrived here
an organization which, like its counterparts in Manchukuo, Nanking, Burma, and Vichy, has been
appropriately called "puppet" by the civilized government of the world.

BRIONES, M., concurrente:

El mandamiento de habeas corpus que se solicita debe concederse.

La proclama del General McArthur de 23 de Octubre de 1944, lanzada cuatro dias despues de su
desembarco en Leyte con las fuerzas libertadoras, reza en parte lo siguiente:

3. Que todas las leyes, regulaciones y procesos de cualquier otro gobierno en Filipinas que
no fuera el del Commonwealth son nulos e invalidos y carecen de efecto legal en areas de
Filipinas liberadas de la ocupacion y control del enemigo.

Recientemente se ha discutido mucho en esta jurisdiccion sobre si la anulacion de que trata dicha
proclama puede referirse tambien a actuaciones judiciales ( judicial processes). En el asunto de Co
Kim Cham contra Valdez Tan Keh y Dizon, R.G. No. L-5 (pag, 133, ante), he opinado
afirmativamente, esto es, que el alcance de esa proclama puede extenderse a veces a ciertos actos
o procesos judiciales. Reafirmo ahora mi opinion y con mayor vigor y enfasis si cabe. Porque, a mi
juicio, la sentencia de reclusion perpetua impuesta al recurrente bajo la ocupacion militar japonesa
es de aquellos actos judiciales del passado regimen que por su naturaleza y circunstancias
reclaman una decidida y pronta accion de parte nuestra en el sentido de anularla y dejarla sin
efecto. Mis razones se exponen a continuacion.

Parece innegable que la ley procesal bajo la cual fue enjuiciado y convicto el recurrente durante la
ocupacion japonesa era absolutamente incompatible con las salvaguardias y garantias de un
proceso justo, imparcial y ordenado que la constitucion y legislacion procesal del Commonwealth de
Filipinas otorgan a todo acusado en una causa criminal. Hay en dicha ley ciertos aspectos
decididamente repulsivos para una conciencia disciplinada en las normas y pricipios de una
democracia constitucional.

Bajo nuestro sistema procesal el acusado tiene derecho a que no se le ponga en situacion de
acriminarse. Tiene a derecho a callarse sin que esto pueda astribuirsele cargo inculpatorio alguno.
Este es un derecho fundamental, garantido por la constitucion.

Empero bajo el sistema procesal que se discute, "la negativa del acusado a constestar cualqueira
pregunta formulada por el tribunal o permitida por el mismo, puede ser considerada en contra de
dicho acusado." (Seccion 21, Orden Ejecutiva No. 157.) Bajo este mismo sistema el caracter
sumarisimo del proceso llega a tal extremo que "una sentencia condenatoria puede dictarse
inmediatemente contra el acusado siempre que los hechos discubiertos en el interrogatorio
preliminar demuestren que el acusado es culpable."

Bajo el sistema procesal del Commonwealth, cualquier acusado convicto ante el Juzgado de
Primera Instancia tiene el derecho de apelar de la sentencia para ante el Tribunal superior de
revision; y en los casos de condena a reclusion perpetua o a muerte, el Tribunal Supremo es el
llamado a revisar la causa, siendo compulsoria la revision en el caso de condena a muerte. Esta
jurisdiccion del Tribunal Supremo en los casos de condena a reclusion perpetua y a muerte no se
halla estatuida simplemente por una ley ordinaria, sino que esta proveida en la misma constitucion
del Commonwealth. Asi que el derecho del condenado a reclusion perpetua o a muerte para que se
revise su cuasa por el Tribunal Supremo es constitucional y, por ende, no puede ser abolido por un
simple fiat legislativo.

En cambio, bajo el sistema procesal en controversia las sentencias de los tribunales o sumarias
eran de caracter final, excepto cuando la pena impuesta fuera la de muerte, en cuyo caso los autos
se elevaban en consulta a una division especial del Tribunal Supremo compuesta de tres miembros
(Ordenanza No. 7 de la llamada Republica de Filipinas por la que se crearon las tribunales
especiales o sumarios). De modo que en esta ordenanza no solo se suprimia de una plumada el
derecho de apelar reconocido y establecido por la legislacion procesal del Commonwealth aun en
los casos de delitos y penas ordinarios, sino que inclusive quedaba abolido el derecho de apelar
otorgado por la constitucion del Commonwealth al acusado condenado a reclusion perpetua. Por
este motivo el recurrente, a quien se le habia impuesto esta pena por el alergado delito de robo, no
pudo apelar de al sentencia para ante el Tribunal Supremo.

La cuestion que ahora tenemos que determinar y resolver es si debemos reconocer validez y
eficacia en la sentencia por la cual el recurrente se halla extinguiendo su condena de reclusion
perpetua, o debemos anularla ahora que esta en nuestras manos el poder hacerlo, restablecida
como esta enteramente la normalidad juridica y constitucional en nuestro pais.

En favor de la validez de dicha sentencia se arguye que fue dictada por un tribunal creado por un
gobierno de jure; que aun admitiendo el caracter inquisitorial, anti democratico de la ley procesal
bajo la cual fue enjuiciado el acusado, el gobierno de facto era dueo de establecer los
procedimientos legales que quisiera; y que, segun las reglas y doctrinas conocidas de derecho
international, las sentencias por "crimenes de guerra" o delitos politicos" generalmente validas aun
despues de restablecido el gobierno de jure. Se alega que en estos casos el derecho no tiene mas
remedio que ceder a la fuerza, aceptando la realidad de los hechos consumados.

Se admite, sin embargo, que la regla tiene sus excepciones. Una de allas esque "los actos del
ocupante militar que rebasen su poder a tenor del criterio establecido en el articulo 43 de las
Regulaciones de La Haya, son nulos y sin efecto con relacion al gobierno legitimo." (Wheaton's
International Law, 7th ed. [1944], p. 245.) Segun esto, las sentencias por "crimenes de guerra" o
"delitos politicos" cometidos durante la ocupacion son, por razones pecfetamente comprensibles,
nulas e invalidas al restablecerse la soberania legitima. Tambien quedan comprendidos bajo esta
excepcion los denominados actos de caracter o complexion politica.

Otra limitacion a los poderes de un gobierno de ocupacion militar es que elejercicio de tales poderes
debe extenderse tan solo hasta donde fuese necesario para su seguridad y el exito de sus
operaciones, teniendo particularmente en cuental el caracter transeunte de su occupacion. Como
regla general, al invasor se le prohibe alterar o suspender las leyes referentes a la propiedad y a las
relaciones personales privadas, o las leyes que regulan el orden moral de la comunidad. (Hall,
Treatise on International Law, 7th ed., 498,499). Lo que se hace fuera de estas limitaciones es en
exceso de su competencia y es generalmente nulo al rstaurarse la soberania legitima.

Otra excepcion es la que se refiere a los actos de un gobierno de facto resultante de una
insurreccion, rebelion, revolucion o guerra civil. A esteefecto se ha declarado, peo ejemplo. que los
actos en fomento o apoyo de unarebelion contra los Estados Unidos, o encaminados a anular los
justos derechos de los ciudadanos, y otros actos de igual indole, deben ser considerados, por lo
general, invalidos y nulos (Texas vs. White, 74 U. S.,733; 19 Law, ed., 240). En otro caso se ha
declaro la validez de ciertos actos judiciales o legislativos en estados insurreccionados, siempre que
su proposito o modo de operacion no fuerte hostil a la autoridad del gobierno nacional, o no
conculcaren derechos de los ciudadanos bajo la Constitucion. Horn vs. Lockhart, 17 Well, 570-
581; 2 Law. ed., 660.)

Visto el caso que nos ocupa a la luz de estas doctrinas, cual de ellas debemos adoptar para
determinar si es o no valida la sentencia por la la cual el recurrente sufre ahora pena de reclusion
perpetua y pide ser liberado mediante peticion de habeas corpus?

Se aservera que no procede aplicar al presente caso la doctrina establecida en la jurisprudencia

americana sobre gobiernos de facto resultantes de una insureccion, revolucion o guerra civil porque
evidentemente la llamada Republica de Filipinas instaurada durante la ocupacion militar japonesa
no tenia este caracter, sino que era mas bien un gobierno establecido mediantefuerza y coaccion
por los mismos invasores para promover ciertos designios politicos relacionados con sus fines de
guerra. En otras palabras, era el mismo gobierno militar de ocupacion con fachada filipina arreglada
y arbitrada coercitivamente.

Mientras estoy conforme con una parte de la asercion, esto es, que la aludida republica no tenia
caracter insurreccional ni revolucionario, en disfrute de plena autonomia, sino que era simple
producto de la coaccion y estaba mediatizada continuamente por el invasor, difiero de la otra parte,
aquella que declara inaplicable la conocida doctrina americana mencionada arriba sobre
gobiernos de facto establecidos en el curso de una insurreccion, revolucion o guerra civil. Y la razon
es sencilla. Si a un gobierno de factode este ultimo tipo gobierno establecido, despues de todo,
por compatriotas,por conciudadanos se le coarta con la restriccion de que sus actos legislativos o
judiciales, en tanto son validos, al restaurarse el regimende jure, en cuanto no conculcaren los
derechos justos de los ciudadanos, a los derechos garantidos por la constitucion, parece que no
existe ninguna razon por que no se ha de aplicar la misma restriccion al gobierno de
facto establecido como incidente de una guerra entre dos naciones independientes y enemigas. En
realidad, la razon de nulidad es mucho mas poderosa y fuertecuando, en su caso como el de
Filipinas, el enemigo invasor incio la agresion de una manera inicua y traicionera y la ejecuto luego
con vesania y sadismo que llegaron a extremos inconcebibles de barbarie. En este caso
la conculcacion de los justos derechos de los ciudadanos, o de los derechos garantidos por la
constitucion cobra proporciones de mucha mayor gravedad porque viene a ser tan solo parte de un
vasto plan de rapia, devastacion y atrocidades de todo genero cometidas contra la humanidad y
contra las leyes y usos de la guerra entre naciones civilizadas. El invasor, en este caso, es como el
foragido que se coloca fuera de toda ley. Por tanto, no hay absolutamente ninguna razon para no
aplicarle una restriccion que se estimabuena para el insurrecto o revolucionario.

La ventaja de extender hasta cierto punto la doctrina sobre gobiernos de facto resultantes de una
insurreccion, rebelion o guerra civil a gobiernos de facto establecidos como incidente en el curso de
una guerra entre dos naciones independeientes enemigas es que, frente a casos de conculcacion
de los justos derechos de los ciudadanos, o de los garantidos por laconstitucion para los efectos de
declararlos validos o nulos al restablecerse el gobierno de jure, ya no se hace preciso examinar si
los actos conculcatorios fueron motivados por razones o exigencias de las seguridad y exito de las
operaciones del ocupante militar, sino que la piedra de toque de la validez o nulidad viene a ser tan
solo el acto positivo mismo de la conculcacion.

Esta forma de racioncinio no solo no es heterodoxa a la luz de los pincipiosestablecidos de derecho

internacional, sino parece ser una logica inferenciade los mismos. Ya hemos visto que al ocupante
militar en el curso de unaguerra internacional se le prohibe, como regla general, alterar o
suspenderlas leyes referentes a la propiedad y a las relaciones personales privadas, olas leyes que
regulan el orden moral de la comunidad. (Hall, Treatise on International Law, supra.) Ahora cabe
preguntar: Son los justos derechos de los ciudadanos, o los fundamentales garantidos por la
constitucion inferiores en categoria a la propiedad, o las relaciones personales privadas, o al
ordenmoral de la comunidad? No son en cierto sentido hasta superiores? Por tanto,a nadie debe
chocar que la prohibicion se extienda a estas materias. Es unainclusion y perfectamente natural,
mas que justificada por los avances y conquistas del moderno derecho internacional. Notese que en
las fraguas de esta ultima guerra se han forjado unas modalidades juridicas harto originalesque
denotan el esfuerzo supremo y gigante dela humanidad por superar la barbarie y por dar al traste
con las formulas arcaicas, reaccionarias. Para citar solamente algunos ejemplos los mas destados,
tenemos el enjuiciamento de los llamados criminales de la guerra, y la responsabilidad que se exige
a los jefes militares por las atricidades cometidas por las tropas bajo su mando.

Mi conclusion, por tanto, es que desde cualquier angulo que se mire la sentencia impuesta al
recurrente por el tribunal sumario de la llamada republica de Filipinas debe ser declarada nula,
acotando las palabras delProcurador General, "no solo por razones fundadas en principios de
derecho internacional, sino tambien por la mas apremiante y poderosa de las razones,la de
preservar y salvaguardar a nuestros ciudadanos de los actos del enemigo."

Dar validez a esa sentencia ahora, en plena atmosfera de libertad que respiran a pulmon lleno de
resto de nuestros conciudadanos menos el recurrente y otras que corrieron su suerte durante la
ocupacion japonesa,equivaldria tanto como prolongar el regimen de opresion bajo el cual se tramito
y se dicto la referida sentencia. Es mas, equivaldria a sancionar laideologia totalitaria, despotica,
medieval contra la cual nuestro pueblo lucho tan heroicamente jugandose todo; vida libertad y
bienes materiales.

Ciertamente no nos hemos librado de la opresion para llegar a tan irrisorioresultado.

Concedase el remedio pedido.

ALEJANDRO ESTRADA, A.M. No. P-02-1651

Complainant, (formerly OCA I.P.I. No. 00-1021-P)

Present:
PANGANIBAN, CJ.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus- CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.
Promulgated:
SOLEDAD S. ESCRITOR,
Respondent. June 22, 2006

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

RESOLUTION

PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent
Soledad Escritor once again stands before the Court invoking her religious freedom
and her Jehovah God in a bid to save her family united without the benefit of legal
marriage - and livelihood. The State, on the other hand, seeks to wield its power to
regulate her behavior and protect its interest in marriage and family and the
integrity of the courts where respondent is an employee. How the Court will tilt the
scales of justice in the case at bar will decide not only the fate of respondent
Escritor but of other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003.[1]

I. THE PAST PROCEEDINGS

In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada

requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a
child within this live-in arrangement. Estrada believes that Escritor is committing
an immoral act that tarnishes the image of the court, thus she should not be allowed
to remain employed therein as it might appear that the court condones her
act.[2] Consequently, respondent was charged with committing disgraceful and
immoral conduct under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code. [3]

Respondent Escritor testified that when she entered the judiciary in

1999, she was already a widow, her husband having died in 1998.[4] She admitted
that she started living with Luciano Quilapio, Jr. without the benefit of marriage
more than twenty years ago when her husband was still alive but living with
another woman. She also admitted that she and Quilapio have a son. [5] But as a
member of the religious sect known as the Jehovahs Witnesses and
the Watch Tower and Bible Tract Society, respondent asserted that their conjugal
arrangement is in conformity with their religious beliefs and has the approval of
her congregation.[6] In fact, after ten years of living together, she executed on July
28, 1991, a Declaration of Pledging Faithfulness.[7]

For Jehovahs Witnesses, the Declaration allows members of the

congregation who have been abandoned by their spouses to enter into marital
relations. The Declaration thus makes the resulting union moral and binding within
the congregation all over the world except in countries where divorce is allowed.
As laid out by the tenets of their faith, the Jehovahs congregation requires that at
the time the declarations are executed, the couple cannot secure the civil authorities
approval of the marital relationship because of legal impediments. Only couples
who have been baptized and in good standing may execute the Declaration, which
requires the approval of the elders of the congregation. As a matter of practice, the
marital status of the declarants and their respective spouses commission of adultery
are investigated before the declarations are executed.[8] Escritor and Quilapios
declarations were executed in the usual and approved form prescribed by the
Jehovahs Witnesses,[9] approved by elders of the congregation where the
declarations were executed,[10] and recorded in the Watch Tower Central Office.[11]

Moreover, the Jehovahs congregation believes that once all legal

impediments for the couple are lifted, the validity of the declarations ceases, and
the couple should legalize their union. In Escritors case, although she was
widowed in 1998, thereby lifting the legal impediment to marry on her part, her
mate was still not capacitated to remarry.Thus, their declarations remained
valid.[12] In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and Quilapio
and they remain members in good standing in the congregation.

By invoking the religious beliefs, practices and moral standards of her

congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held administratively
liable,[13] the Court had to determine the contours of religious freedom under
Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.

A. RULING

In our decision dated August 4, 2003, after a long and arduous scrutiny into
the origins and development of the religion clauses in the United States (U.S.) and
the Philippines, we held that in resolving claims involving religious freedom
(1) benevolent neutrality or accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondents plea of exemption based on the Free
Exercise Clause (from the law with which she is administratively charged), it
is the compelling state interest test, the strictest test, which must be applied.[14]

Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more compelling interest to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we
remanded the complaint to the Office of the Court Administrator (OCA), and
ordered the Office of the Solicitor General (OSG) to intervene in the case so it
can:
(a) examine the sincerity and centrality of respondents claimed religious
belief and practice;

(b) present evidence on the states compelling interest to override

respondents religious belief and practice; and

(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom. [15]

It bears stressing, therefore, that the residual issues of the case pertained
NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled upon prior
to the remand, and constitute the law of the case insofar as they resolved the
issues of which framework and test are to be applied in this case, and no
motion for its reconsideration having been filed.[16] The only task that the Court
is left to do is to determine whether the evidence adduced by the State proves its
more compelling interest. This issue involves a pure question of fact.

B. LAW OF THE CASE

Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this
case interpreting the religious clauses of the Constitution, made more than two
years ago, is misplaced to say the least. Since neither the complainant, respondent
nor the government has filed a motion for reconsideration assailing this ruling, the
same has attained finality and constitutes the law of the case. Any attempt to
reopen this final ruling constitutes a crass contravention of elementary rules of
procedure. Worse, insofar as it would overturn the parties right to rely upon our
interpretation which has long attained finality, it also runs counter to substantive
due process.

Be that as it may, even assuming that there were no procedural and

substantive infirmities in Mr. Justice Carpios belated attempts to disturb settled
issues, and that he had timely presented his arguments, the results would still be
the same.

We review the highlights of our decision dated August 4, 2003.

1. OLD WORLD ANTECEDENTS

In our August 4, 2003 decision, we made a painstaking review of Old World

antecedents of the religion clauses, because one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to
religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience.[17] We delved into the conception of religion from
primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God. [18] Then,
religion developed on its own and became superior to the state,[19] its
subordinate,[20] and even becoming an engine of state policy.[21]

We ascertained two salient features in the review of religious history: First,

with minor exceptions, the history of church-state relationships was characterized
by persecution, oppression, hatred, bloodshed, and war, all in the name of the God
of Love and of the Prince of Peace. Second, likewise with minor exceptions, this
history witnessed the unscrupulous use of religion by secular powers to promote
secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits conferred
by ambitious princes and emperors in exchange for religions invaluable
service. This was the context in which the unique experiment of the principle of
religious freedom and separation of church and state saw its birth in American
constitutional democracy and in human history. [22]

Strictly speaking, the American experiment of freedom and separation was

not translated in the First Amendment. That experiment had been launched four
years earlier, when the founders of the republic carefully withheld from the new
national government any power to deal with religion. As James Madison said, the
national government had no jurisdiction over religion or any shadow of right to
intermeddle with it. [23]

The omission of an express guaranty of religious freedom and other natural

rights, however, nearly prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption of the religion clauses in the
First Amendment as they are worded to this day. Thus, the First Amendment did
not take away or abridge any power of the national government; its intent was to
make express the absence of power.[24] It commands, in two parts (with the first
part usually referred to as the Establishment Clause and the second part, the Free
Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof. [25]

The Establishment and Free Exercise Clauses, it should be noted, were not
designed to serve contradictory purposes. They have a single goalto promote
freedom of individual religious beliefs and practices. In simplest terms, the Free
Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause
prohibits government from inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.[26]

In sum, a review of the Old World antecedents of religion shows the

movement of establishment of religion as an engine to promote state interests, to
the principle of non-establishment to allow the free exercise of religion.

2. RELIGION CLAUSES IN THE U.S. CONTEXT

The Court then turned to the religion clauses interpretation and construction
in the United States, not because we are bound by their interpretation, but because
the U.S.religion clauses are the precursors to the Philippine religion clauses,
although we have significantly departed from the U.S. interpretation as will be
discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has
been volatile and fraught with inconsistencies whether within a Court decision or
across decisions. For while there is widespread agreement regarding the value of
the First Amendment religion clauses, there is an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in the U.S. Congress renders it difficult to
ascertain its meaning.[27]

U.S. history has produced two identifiably different, even opposing, strains
of jurisprudence on the religion clauses. First is the standard of separation, which
may take the form of either (a) strict separation or (b) the tamer version of strict
neutrality or separation, or what Mr. Justice Carpio refers to as the second theory
of governmental neutrality. Although the latter form is not as hostile to religion
as the former, both are anchored on the Jeffersonian premise that a wall of
separation must exist between the state and the Church to protect the state from the
church.[28] Both protect the principle of church-state separation with a rigid reading
of the principle. On the other hand, the second standard, the benevolent
neutrality or accommodation, is buttressed by the view that the wall of separation
is meant to protect the church from the state. A brief review of each theory is in
order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant
to protect the state from the church, and the states hostility towards religion allows
no interaction between the two. According to this Jeffersonian view, an absolute
barrier to formal interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or indirect, from the
state. Nor could the state adjust its secular programs to alleviate burdens the
programs placed on believers.[29] Only the complete separation of religion from
politics would eliminate the formal influence of religious institutions and provide
for a free choice among political views, thus a strict wall of separation is
necessary. [30]

Strict separation faces difficulties, however, as it is deeply embedded in

American history and contemporary practice that enormous amounts of aid, both
direct and indirect, flow to religion from government in return for huge amounts of
mostly indirect aid from religion.[31] For example, less than twenty-four hours after
Congress adopted the First Amendments prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty
for the many blessings enjoyed by the nation with a resolution in favor of a
presidential proclamation declaring a national day of Thanksgiving and
Prayer.[32] Thus, strict separationists are caught in an awkward position of
claiming a constitutional principle that has never existed and is never likely to.[33]

The tamer version of the strict separationist view, the strict

neutrality or separationist view, (or, the governmental neutrality theory) finds
basis in Everson v. Board of Education,[34] where the Court declared
that Jeffersons wall of separation encapsulated the meaning of the First
Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the wall of separation does not require the state to be
their adversary. Rather, the state must be neutral in its relations with groups of
religious believers and non-believers. State power is no more to be used so as to
handicap religions than it is to favor them.[35] The strict neutrality approach is not
hostile to religion, but it is strict in holding that religion may not be used as a basis
for classification for purposes of governmental action, whether the action confers
rights or privileges or imposes duties or obligations. Only secular criteria may be
the basis of government action. It does not permit, much less
require, accommodation of secular programs to religious belief.[36]

The problem with the strict neutrality approach, however, is if applied in

interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v.
Schempp,[37] strict neutrality could lead to a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to the religious which is
prohibited by the Constitution.[38] Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea
of a free exercise clause. The Framers, whatever specific applications they may
have intended, clearly envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion but not, say, of
philosophy or science. The strict neutrality approach all but erases this distinction.
Thus it is not surprising that the [U.S.] Supreme Court has rejected strict
neutrality, permitting and sometimes mandating religious classifications.[39]

Thus, the dilemma of the separationist approach, whether in the form

of strict separation or strict neutrality, is that while the Jeffersonian wall of
separation captures the spirit of the American ideal of church-state separation, in
real life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.[40]

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a

different view of the wall of separation, associated with Williams, founder of
the Rhode Islandcolony. Unlike the Jeffersonian wall that is meant to protect the
state from the church, the wall is meant to protect the church from the state. [41] This
doctrine was expressed in Zorach v. Clauson,[42] which held, viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter. Otherwise,
the state and religion would be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection to
religious groups.Policemen who helped parishioners into their places of worship
would violate the Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the proclamations making
Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and
all other references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious atheist or
agnostic could even object to the supplication with which the Court opens each
session: God save the United States and this Honorable Court.

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions. For it
then respects the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its weight against
efforts to widen their effective scope of religious influence.[43]
 Benevolent neutrality recognizes that religion plays an important role in the
public life of the United States as shown by many traditional government practices
which, to strict neutrality, pose Establishment Clause questions. Among these are
the inscription of In God We Trust on American currency; the recognition of
America as one nation under God in the official pledge of allegiance to the flag;
the Supreme Courts time-honored practice of opening oral argument with the
invocation God save the United States and this Honorable Court; and the practice
of Congress and every state legislature of paying a chaplain, usually of a particular
Protestant denomination, to lead representatives in prayer.These practices clearly
show the preference for one theological viewpointthe existence of and potential for
intervention by a godover the contrary theological viewpoint of atheism. Church
and government agencies also cooperate in the building of low-cost housing and in
other forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral dimension. [44]

Examples of accommodations in American jurisprudence also abound,

including, but not limited to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister to lead the legislature in daily
prayers,[45] or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge; [46] for government to
give money to religiously-affiliated organizations to teach adolescents about proper
sexual behavior;[47] or to provide religious school pupils with books;[48] or bus rides
to religious schools;[49] or with cash to pay for state-mandated standardized tests.[50]

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the
Religion clauses are invoked in relation to governmental action, almost invariably
in the form of legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion

will be challenged as unconstitutional, either because it violates the Free Exercise
Clause or the Establishment Clause or both. This is true whether one subscribes to
the separationist approach or the benevolent
neutrality or accommodationist approach.

But the more difficult religion cases involve legislative acts which have a
secular purpose and general applicability, but may incidentally or inadvertently aid
or burden religious exercise. Though the government action is not religiously
motivated, these laws have a burdensome effect on religious exercise.

The benevolent neutrality theory believes that with respect to these

governmental actions, accommodation of religion may be allowed, not to promote
the governments favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a persons or institutions
religion. As Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would otherwise
thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish.[51] In the ideal world, the
legislature would recognize the religions and their practices and would consider
them, when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened may turn to the
courts for protection.[52]

Thus, what is sought under the theory of accommodation is not a declaration

of unconstitutionality of a facially neutral law, but an exemption from its
application or its burdensome effect, whether by the legislature or the
courts.[53] Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a burdensome
effect.[54]

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

 The pinnacle of free exercise protection and the theory of accommodation in
the U.S. blossomed in the case of Sherbert v. Verner,[55] which ruled that state
regulation that indirectly restrains or punishes religious belief or conduct must be
subjected to strict scrutiny under the Free Exercise Clause.[56] According
to Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount and
compelling as to override the free exercise claim. Otherwise, the Court itself will
carve out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment

compensation under the law as her employment was terminated for refusal to work
on Saturdays on religious grounds. Her claim was denied. She sought recourse in
the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South Carolina Supreme Court is to
withstand appellants constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of
her constitutional right of free exercise, or because any incidental burden on
the free exercise of appellants religion may be justified by a compelling state
interest in the regulation of a subject within the States constitutional power
to regulate. . . .[57] (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation. [58] The Court found
that there was no such compelling state interest to override Sherberts religious
liberty. It added that even if the state could show that Sherberts exemption would
pose serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative
means of regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to choose
between receiving benefits and following her religion. This choice placed the same
kind of burden upon the free exercise of religion as would a fine imposed against
(her) for her Saturday worship. This germinal case of Sherbert firmly established
the exemption doctrine, [59] viz:
It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions
ought to be granted unless some compelling state interest intervenes.

Thus, Sherbert and subsequent cases held that when government action
burdens, even inadvertently, a sincerely held religious belief or practice, the state
must justify the burden by demonstrating that the law embodies a compelling
interest, that no less restrictive alternative exists, and that a religious exemption
would impair the states ability to effectuate its compelling interest. As in other
instances of state action affecting fundamental rights, negative impacts on those
rights demand the highest level of judicial scrutiny. After Sherbert, this strict
scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were
found. [60]

Then, in the 1972 case of Wisconsin v. Yoder,[61] the U.S. Court again ruled
that religious exemption was in order, notwithstanding that the law of general
application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin compulsory
school-attendance laws. The Court, in effect, granted exemption from a neutral,
criminal statute that punished religiously motivated conduct. Chief Justice Burger,
writing for the majority, held, viz:
 It follows that in order for Wisconsin to compel school attendance beyond
the eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses had
specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion.The values underlying these
two provisions relating to religion have been zealously protected, sometimes even
at the expense of other interests of admittedly high social importance. . .

The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that activities
of individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety, and
general welfare, or the Federal government in the exercise of its delegated powers
. . . But to agree that religiously grounded conduct must often be subject to
the broad police power of the State is not to deny that there are areas of
conduct protected by the Free Exercise Clause of the First Amendment and
thus beyond the power of the State to control, even under regulations of
general applicability. . . .This case, therefore, does not become easier because
respondents were convicted for their actions in refusing to send their children to
the public high school; in this context belief and action cannot be neatly confined
in logic-tight compartments. . . [62]

The cases of Sherbert and Yoder laid out the following doctrines: (a) free
exercise clause claims were subject to heightened scrutiny or compelling interest
test if government substantially burdened the exercise of religion; (b) heightened
scrutiny or compelling interest test governed cases where the burden was
direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well
as cases where the burden was indirect, i.e., the exercise of religion resulted in the
forfeiture of a government benefit;[63]and (c) the Court could carve out
accommodations or exemptions from a facially neutral law of general application,
whether general or criminal.
 The Sherbert-Yoder doctrine had five main components. First, action was
protectedconduct beyond speech, press, or worship was included in the shelter of
freedom of religion. Neither Sherberts refusal to work on the Sabbath nor the
Amish parents refusal to let their children attend ninth and tenth grades can be
classified as conduct protected by the other clauses of the First
Amendment. Second, indirect impositions on religious conduct, such as the denial
of twenty-six weeks of unemployment insurance benefits to Adel Sherbert, as well
as direct restraints, such as the criminal prohibition at issue in Yoder, were
prohibited. Third, as the language in the two cases indicate, the protection granted
was extensive. Only extremely strong governmental interests justified
impingement on religious conduct, as the absolute language of the test of the Free
Exercise Clause suggests. [64]

Fourth, the strong language was backed by a requirement that the

government provide proof of the important interest at stake and of the dangers to
that interest presented by the religious conduct at issue. Fifth, in determining the
injury to the governments interest, a court was required to focus on the effect that
exempting religious claimants from the regulation would have, rather than on the
value of the regulation in general. Thus, injury to governmental interest had to be
measured at the margin: assuming the law still applied to all others, what would be
the effect of exempting the religious claimant in this case and other similarly
situated religious claimants in the future? Together, the fourth and fifth elements
required that facts, rather than speculation, had to be presented concerning how the
governments interest would be harmed by excepting religious conduct from the
law being challenged. [65]

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence
which would impose a discipline to prevent manipulation in the balancing of
interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance, by not
allowing speculation about the effects of a decision adverse to those interests nor
accepting that those interests would be defined at a higher level of generality than
the constitutional interests on the other side of the balance. [66]

Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated conduct. While
not affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with religious
practices. Although the members of the U.S. Court often disagreed over which
governmental interests should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of
religion.[67] Most scholars and courts agreed that under Sherbert and Yoder, the
Free Exercise Clause provided individuals some form of heightened scrutiny
protection, if not always a compelling interest one.[68] The 1990 case
of Employment Division, Oregon Department of Human Resources v.
Smith,[69] drastically changed all that.

Smith involved a challenge by Native Americans to an Oregon law

prohibiting use of peyote, a hallucinogenic substance. Specifically, individuals
challenged the states determination that their religious use of peyote, which
resulted in their dismissal from employment, was misconduct disqualifying them
from receipt of unemployment compensation benefits. [70]

Justice Scalia, writing for the majority, rejected the claim that free exercise
of religion required an exemption from an otherwise valid law. Scalia said that
[w]e have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition. [71] Scalia thus declared that the right of
free exercise does not relieve an individual of the obligation to comply with a valid
and neutral law of general applicability of the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).[72]
 Justice Scalias opinion then reviewed the cases where free exercise
challenges had been upheldsuch as Cantwell, Murdock, Follet,
Pierce, and Yoderand said that none involved the free exercise clause claims
alone. All involved the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the press, or the right
of parents to direct the education of their children. [73] The Court said
that Smith was distinguishable because it did not involve such a hybrid situation,
but was a free exercise claim unconnected with any communicative activity or
parental right. [74]

Moreover, the Court said that the Sherbert line of cases applied only in the
context of the denial of unemployment benefits; it did not create a basis for an
exemption from criminal laws. Scalia wrote that [e]ven if we were inclined to
breathe into Sherbert some life beyond the unemployment compensation field, we
would not apply it to require exemptions from a generally applicable criminal
law. [75]

The Court expressly rejected the use of strict scrutiny for challenges to
neutral laws of general applicability that burden religion. Justice Scalia said that
[p]recisely because we are a cosmopolitan nation made up of people of almost
conceivable religious preference, and precisely because we value and protect that
religious divergence, we cannot afford the luxury of deeming presumptively
invalid, as applied to the religious objector, every regulation of conduct that does
not protect an interest of the highest order. The Court said that those seeking
religious exemptions from laws should look to the democratic process for
protection, not the courts. [76]

Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for evaluating
laws burdening religion; neutral laws of general applicability only have to meet the
rational basis test, no matter how much they burden religion. [77]
 Justice OConnor wrote a concurring opinion sharply criticizing the rejection
of the compelling state interest test, asserting that (t)he compelling state interest
test effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not
permit encroachments upon this liberty, whether direct or indirect, unless required
by clear and compelling government interest of the highest order.[78] She said that
strict scrutiny is appropriate for free exercise challenges because [t]he compelling
interest test reflects the First Amendments mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society. [79]

Justice OConnor also disagreed with the majoritys description of prior cases
and especially its leaving the protection of minority religions to the political
process. She said that, First Amendment was enacted precisely to protect the rights
of those whose religious practice are not shared by the majority and may be viewed
with hostility. [80]

Justice Blackmun wrote a dissenting opinion that was joined by Justices

Brennan and Marshall. The dissenting Justices agreed with Justice OConnor that
the majority had mischaracterized precedents, such as in describing Yoder as a
hybrid case rather than as one under the free exercise clause. The dissent also
argued that strict scrutiny should be used in evaluating government laws burdening
religion. [81]

Criticism of Smith was intense and widespread.[82] Academics, Justices, and

a bipartisan majority of Congress noisily denounced the decision. [83] Smith has the
rather unusual distinction of being one case that is almost universally despised (and
this is not too strong a word) by both the liberals and conservatives.[84] Liberals
chasten the Court for its hostility to minority faiths which, in light
of Smiths general applicability rule, will allegedly suffer at the hands of the
majority faith whether through outright hostility or neglect. Conservatives bemoan
the decision as an assault on religious belief leaving religion, more than ever,
subject to the caprice of an ever more secular nation that is increasingly hostile to
religious belief as an oppressive and archaic anachronism. [85]

The Smith doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.[86] First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. [87] Critics
of Smith have worried about religious minorities, who can suffer
disproportionately from laws that enact majoritarian mores. [88] Smith, in effect
would allow discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,[89] contrary to the
original theory of the First Amendment.[90] Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial recourse for
exemption.[91] Second, Smith leaves too much leeway for pervasive welfare-state
regulation to burden religion while satisfying neutrality. After all, laws not aimed
at religion can hinder observance just as effectively as those that target
religion.[92] Government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where direct and
deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If
the Free Exercise Clause could not afford protection to inadvertent interference, it
would be left almost meaningless.[93] Third, the Reynolds-Gobitis-
Smith[94] doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the state
to effectively pursue its objective without serious inadvertent impact on religion.[95]

At bottom, the Courts ultimate concern in Smith appeared to be two-fold:

(1) the difficulty in defining and limiting the term religion in todays pluralistic
society, and (2) the belief that courts have no business determining the significance
of an individuals religious beliefs. For the Smith Court, these two concerns appear
to lead to the conclusion that the Free Exercise Clause must protect everything or it
must protect virtually nothing. As a result, the Court perceives its only viable
options are to leave free exercise protection to the political process or to allow a
system in which each conscience is a law unto itself. [96] The Courts
characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable options,
then admittedly, the Court has a stronger argument. But the Free Exercise Clause
cannot be summarily dismissed as too difficult to apply and this should not be
applied at all. The Constitution does not give the judiciary the option of simply
refusing to interpret its provisions. The First Amendment dictates that free
exercise of religion must be protected. Accordingly, the Constitution compels the
Court to struggle with the contours of what constitutes religion. There is no
constitutional opt-out provision for constitutional words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between the Courts
two opposing alternatives for free exercise jurisprudence. Unfortunately, this
middle ground requires the Court to tackle difficult issues such as defining
religion and possibly evaluating the significance of a religious belief against the
importance of a specific law. The Court describes the results of this middle
ground where federal judges will regularly balance against the importance of
general laws the significance of religious practice, and then dismisses it as a
parade of horribles that is too horrible to contemplate.

It is not clear whom the Court feels would be most hurt by this parade of
horribles. Surely not religious individuals; they would undoubtedly prefer their
religious beliefs to be probed for sincerity and significance rather than acquiesce
to the Courts approach of simply refusing to grant any constitutional significance
to their beliefs at all. If the Court is concerned about requiring lawmakers at times
constitutionally to exempt religious individuals from statutory provisions, its
concern is misplaced. It is the lawmakers who have sought to prevent the Court
from dismantling the Free Exercise Clause through such legislation as the
[Religious Freedom Restoration Act of 1993], and in any case, the Court should
not be overly concerned about hurting legislatures feelings by requiring their laws
to conform to constitutional dictates. Perhaps the Court is concerned about putting
such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters
is a burden no judge should be expected to fulfill.[97]
 Parenthetically, Smiths characterization that the U.S. Court has never held
that an individuals religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the state is free to regulatean assertion which
Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply criticized
even implicitly by its supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing the arguments that the Court
was wrong as a matter of original meaning [of the religion clauses] or that the
decision conflicted with precedent [i.e. the Smith decision made shocking use of
precedent]those points were often conceded. [98]

To justify its perversion of precedent, the Smith Court attempted to

distinguish the exemption made in Yoder, by asserting that these were premised on
two constitutional rights combinedthe right of parents to direct the education of
their children and the right of free exercise of religion. Under the Courts opinion
in Smith, the right of free exercise of religion standing alone would not allow
Amish parents to disregard the compulsory school attendance law, and under the
Courts opinion in Yoder, parents whose objection to the law was not religious
would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined? [99] As
for Sherbert, the Smith Court attempted to limit its doctrine as applicable only to
denials of unemployment compensation benefits where the religiously-compelled
conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious
person was more likely to be entitled to constitutional protection when forced to
choose between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. [100]

Thus, the Smith decision elicited much negative public reaction especially
from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.[101] So much was the uproar that a
majority in Congress was convinced to enact the Religious Freedom Restoration
Act (RFRA) of 1993.[102] The RFRA was adopted to negate the Smith test and
require strict scrutiny for free exercise claims. Indeed, the findings section of the
Act notes that Smith virtually eliminated the requirement that the government
justify burdens on religious exercise imposed by laws neutral toward
religion.[103] The Act declares that its purpose is to restore the compelling interest
test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee
its application in all cases where free exercise of religion is substantially burdened;
and to provide a claim of defense to a person whose religious exercise is
substantially burdened by government.[104] The RFRA thus sought to
overrule Smith and make strict scrutiny the test for all free exercise clause
claims. [105]

In the City of Boerne v. Flores, [106] the U.S. Supreme Court declared the
RFRA unconstitutional, ruling that Congress had exceeded its power under the
Fourteenth Amendment in enacting the law. The Court ruled that Congress is
empowered to enact laws to enforce the amendment, but Congress is not enforcing
when it creates new constitutional rights or expands the scope of rights. [107]

City of Boerne also drew public backlash as the U.S. Supreme Court was
accused of lack of judicial respect for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice Scalia wrote:
Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the political
process. Just as society believes in the negative protection accorded to the press
by the First Amendment is likely to enact laws that affirmatively foster the
dissemination of the printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be solicitous of that
value in its legislation as well.

By invalidating RFRA, the Court showed a marked disrespect of the

solicitude of a nearly unanimous Congress. Contrary to the Courts characterization
of the RFRA as a kind of usurpation of the judicial power to say what the
Constitution means, the law offered no definition of Free Exercise, and on its face
appeared to be a procedural measure establishing a standard of proof and allocating
the duty of meeting it. In effect, the Court ruled that Congress had no power in the
area of religion. And yet, Free Exercise exists in the First Amendment as a
negative on Congress. The power of Congress to act towards the states in matters
of religion arises from the Fourteenth Amendment. [108]

From the foregoing, it can be seen that Smith, while expressly recognizing
the power of legislature to give accommodations, is in effect contrary to
the benevolent neutrality or accommodation approach. Moreover, if we consider
the history of the incorporation of the religion clauses in the U.S., the decision
in Smith is grossly inconsistent with the importance placed by the framers on
religious faith. Smith is dangerous precedent because it subordinates fundamental
rights of religious belief and practice to all neutral, general
legislation. Sherbert recognized the need to protect religious exercise in light of
the massive increase in the size of government, the concerns within its reach, and
the number of laws administered by it. However, Smith abandons the protection of
religious exercise at a time when the scope and reach of government has never
been greater. It has been pointed out that Smith creates the legal framework for
persecution: through general, neutral laws, legislatures are now able to force
conformity on religious minorities whose practice irritate or frighten an intolerant
majority.[109]

The effect of Smith is to erase entirely the concept of mandatory

accommodations, thereby emasculating the Free Exercise Clause. Smith left
religious freedom for many in the hands of the political process, exactly where it
would be if the religion clauses did not exist in the Bill of Rights. Like most
protections found in the Bill of Rights, the religion clauses of the First Amendment
are most important to those who cannot prevail in the political process. The Court
in Smith ignores the fact that the protections found in the Bill of Rights were
deemed too important to leave to the political process. Because mainstream
religions generally have been successful in protecting their interests through the
political process, it is the non-mainstream religions that are adversely affected
by Smith. In short, the U.S. Supreme Court has made it clear to such religions that
they should not look to the First Amendment for religious freedom. [110]

(3) Accommodation under the Religion Clauses

A free exercise claim could result to three kinds of accommodation: (a)

those which are found to be constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or legislative, i.e., not required
by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit.[111]

Mandatory accommodation results when the Court finds that

accommodation is required by the Free Exercise Clause, i.e, when the Court itself
carves out an exemption. This accommodation occurs when all three conditions of
the compelling interest test are met, i.e, a statute or government action has
burdened claimants free exercise of religion, and there is no doubt as to the
sincerity of the religious belief; the state has failed to demonstrate a particularly
important or compelling governmental goal in preventing an exemption; and that
the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the
advancement of public purposes is incomparable that only indifference or hostility
could explain a refusal to make exemptions. Thus, if the states objective could be
served as well or almost as well by granting an exemption to those whose religious
beliefs are burdened by the regulation, the Court must grant the exemption.
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling their
children in high school as required by law. The Sherbert case is another example
where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.[112]
 In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates this
situation where the U.S. Supreme Court upheld the constitutionality of tax
exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that (t)he limits of
permissible state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.[113] Other examples
are Zorach v. Clauson,[114] allowing released time in public schools and Marsh v.
Chambers,[115] allowing payment of legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it

determines that the legislative accommodation runs afoul of the establishment or
the free exercise clause, it results to a prohibited accommodation. In this case,
the Court finds that establishment concerns prevail over potential accommodation
interests. To say that there are valid exemptions buttressed by the Free Exercise
Clause does not mean that all claims for free exercise exemptions are valid. [116] An
example where accommodation was prohibited is McCollum v. Board of
Education,[117] where the Court ruled against optional religious instruction in the
public school premises.[118]

Given that a free exercise claim could lead to three different results, the
question now remains as to how the Court should determine which action to take.
In this regard, it is the strict scrutiny-compelling state interest test which is most
in line with the benevolent neutrality-accommodation approach.

Under the benevolent-neutrality theory, the principle underlying the First

Amendment is that freedom to carry out ones duties to a Supreme Being is an
inalienable right, not one dependent on the grace of legislature. Religious freedom
is seen as a substantive right and not merely a privilege against discriminatory
legislation. With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances.

Considering that laws nowadays are rarely enacted specifically to disable

religious belief or practice, free exercise disputes arise commonly when a law that
is religiously neutral and generally applicable on its face is argued to prevent or
burden what someones religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise
arguments contemplate religious exemptions from otherwise general laws.[119]

Strict scrutiny is appropriate for free exercise challenges because [t]he

compelling interest test reflects the First Amendments mandate of preserving
religious liberty to the fullest extent possible in a pluralistic society. [120] Underlying
the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.[121]

In its application, the compelling state interest test follows a three-step

process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of some
important (or compelling) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the
government does not, the plaintiff is entitled to exemption from the law or
practice at issue. In order to be protected, the claimants beliefs must be sincere,
but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimants religious denomination. Only beliefs rooted
in religion are protected by the Free Exercise Clause; secular beliefs, however
sincere and conscientious, do not suffice.[122]

In sum, the U.S. Court has invariably decided claims based on the religion
clauses using either the separationist approach, or the benevolent neutrality
approach. The benevolent neutrality approach has also further been split by the
view that the First Amendment requires accommodation, or that it only allows
permissible legislative accommodations. The current prevailing view as
pronounced in Smith, however, is that that there are no required accommodation
under the First Amendment, although it permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence

and Practice

a. US Constitution and jurisprudence vis--vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of

the Philippines, it is immediately clear that one cannot simply conclude that we
have adoptedlock, stock and barrelthe religion clauses as embodied in the First
Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in
the U.S. where legislative exemptions of religion had to be upheld by the U.S.
Supreme Court as constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own constitutions. Thus, our
1935, 1973 and 1987 Constitutions contain provisions on tax exemption of church
property,[123] salary of religious officers in government institutions,[124] and optional
religious instruction.[125] Our own preamble also invokes the aid of a divine
being.[126] These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal without
doubt that the Filipino people, in adopting these constitutions, manifested their
adherence to the benevolent neutrality approach that requires accommodations
in interpreting the religion clauses.[127]

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates
the Walz ruling as this case was decided subsequent to the 1935 Constitution is a
misreading of the ponencia. What the ponencia pointed out was that even as early
as 1935, or more than three decades before the U.S. Court could validate the
exemption in Walz as a form or permissible accommodation, we have already
incorporated the same in our Constitution, as a mandatory accommodation.
 There is no ambiguity with regard to the Philippine Constitutions departure
from the U.S. Constitution, insofar as religious accommodations are concerned. It
is indubitable that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine
Constitution.[128] As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution xxxx Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities
from U.S. jurisprudence without articulating the stark distinction between
the two streams of U.S. jurisprudence [i.e., separation and benevolent
neutrality]. One might simply conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S.religion clause jurisprudence and
the two identifiable streams; thus, when a religion clause case comes before the
Court, a separationist approach or a benevolent neutrality approach might be
adopted and each will have U.S. authorities to support it. Or, one might conclude
that as the history of the First Amendment as narrated by the Court
in Everson supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion clauses
history. As a result, in a case where the party claims religious liberty in the face
of a general law that inadvertently burdens his religious exercise, he faces an
almost insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting provisions
should be reconciled and harmonized in a manner that will give to all of them
full force and effect. From this construction, it will be ascertained that the
intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.[129] [citations
omitted]

We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts
interpretation of the religion clauses to effectively deny accommodations on the
sole basis that the law in question is neutral and of general application. For even if
it were true that an unbroken line of U.S. Supreme Court decisions has never held
that an individuals religious beliefs [do not] excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate, our own
Constitutions have made significant changes to accommodate and exempt
religion. Philippine jurisprudence shows that the Court has allowed
exemptions from a law of general application, in effect, interpreting our
religion clauses to cover both mandatory and permissive accommodations.[130]

To illustrate, in American Bible Society v. City of Manila,[131] the Court

granted to plaintiff exemption from a law of general application based on the Free
Exercise Clause. In this case, plaintiff was required by an ordinance to secure a
mayors permit and a municipal license as ordinarily required of those engaged in
the business of general merchandise under the citys ordinances. Plaintiff argued
that this amounted to religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles and
other religious literature to the people of the Philippines. Although the Court
categorically held that the questioned ordinances were not applicable to plaintiff as
it was not engaged in the business or occupation of selling said merchandise for
profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure
a license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs as the
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment. The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other restraints
of freedom of expression on the grounds that there is a clear and present
danger of any substantive evil which the State has the right to prevent.
(citations omitted, emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The

Division Superintendent of Schools.[132] The case involved several Jehovahs
Witnesses who were expelled from school for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court
overturned an earlier ruling denying such exemption,[133] using the grave and
imminent danger test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence
of a grave and present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any other legitimate
public interest, that the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the petitioners from the schools is not
justified.[134](emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of
general application, on the strength directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The

case of Victoriano v. Elizalde Rope Workers Union[135] is an example of the
application of Mr. Justice Carpios theory of permissive accommodation, where
religious exemption is granted by a legislative act.
In Victoriano, the constitutionality of Republic Act No. 3350 was questioned. The
said R.A. exempt employees from the application and coverage of a closed shop
agreementmandated in another lawbased on religious objections.
Aunanimous Court upheld the constitutionality of the law, holding that government
is not precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. Interestingly, the secular
purpose of the challenged law which the Court upheld was the advancement of the
constitutional right to the free exercise of religion.[136]

Having established that benevolent neutrality-accommodation is the

framework by which free exercise cases must be decided, the next question then
turned to the test that should be used in ascertaining the limits of the exercise of
religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious
belief, as in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these
limits. Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the clear and present danger test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility
of religious freedom is whether it violates the established institutions of society
and law. The Victoriano case mentioned the immediate and grave danger test as
well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of
the law. The case also used, albeit inappropriately, the compelling state
interest test. After Victoriano, German went back to
the Gerona rule. Ebralinag then employed the grave and immediate danger test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the clear and present danger test in the maiden case of American Bible
Society. Not surprisingly, all the cases which employed the clear and present
danger or grave and immediate danger test involved, in one form or another,
religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Geronaand German cases set the rule that
religious freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the grave and immediate
danger test. Victoriano was the only case that employed the compelling state
interest test, but as explained previously, the use of the test was inappropriate to
the facts of the case.

The case at bar does not involve speech as in American Bible

Society, Ebralinag and Iglesia ni Cristo where the clear and present
danger and grave and immediate danger tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent
neutralityapproach, thus not appropriate in this jurisdiction. Similar
to Victoriano, the present case involves purely conduct arising from religious
belief. The compelling state interest test is proper where conduct is involved
for the whole gamut of human conduct has different effects on the states
interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail over the
right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - the most inalienable and sacred of all human
rights, in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such higher
 sovereignty, thus the Filipinos implore the aid of Almighty God in order to build a
just and humane society and establish a government. As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test requires
the state to carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the states interest and
religious liberty, reasonableness shall be the guide. The compelling state interest
serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the compelling state interest test, by upholding the paramount interests of the
state, seeks to protect the very state, without which, religious liberty will not be
preserved. [137] (citations omitted)

At this point, we take note of Mr. Justice Carpios dissent, which, while
loosely disputing the applicability of the benevolent neutrality framework
and compelling state interest test, states that [i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor. This assertion is inconsistent with the position
negating the benevolent neutrality or accommodation approach. If it were true,
indeed, that the religion clauses do not requireaccommodations based on the free
exercise of religion, then there would be no need for a test to determine the
validity of a free exercise claim, as any and all claims for religious exemptions
from a law of general application would fail.

Mr. Justice Carpio also asserts that [m]aking a distinction between

permissive accommodation and mandatory accommodation is more critically
important in analyzing free exercise exemption claims because it forces the Court
to confront how far it can validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the separation theory and accommodation
theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith case) just because it does not espouse the theory
selected. He then asserts that the Smith doctrine cannot be dismissed because it
does not really espouse the strict neutrality approach, but more of permissive
accommodation.

Mr. Justice Carpios assertion misses the point. Precisely because the
doctrine in Smith is that only legislative accommodations are allowed under the
Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even assuming
that the Smith doctrine actually espouses the theory of accommodation or
benevolent neutrality, the accommodation is limited to the permissive, or
legislative exemptions. It, therefore, cannot be used as a test in determining the
claims of religious exemptions directly under the Free Exercise Clause
because Smith does not recognize such exemption. Moreover, Mr. Justice Carpios
advocacy of the Smith doctrine would effectively render the Free Exercise
protectiona fundamental right under our Constitutionnugatory because he would
deny its status as an independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step

process. We explained this process in detail, by showing the questions which must
be answered in each step, viz:
First, [H]as the statute or government action created a burden on the free exercise
of religion? The courts often look into the sincerity of the religious belief, but
without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity
of the claimants belief is ascertained to avoid the mere claim of religious beliefs
to escape a mandatory regulation. xxx

xxx xxx xxx

Second, the court asks: [I]s there a sufficiently compelling state interest to
justify this infringement of religious liberty? In this step, the government has to
establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
 exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: [H]as the state in achieving its legitimate purposes used the
least intrusive means possible so that the free exercise is not infringed any more
than necessary to achieve the legitimate goal of the state? The analysis requires
the state to show that the means in which it is achieving its legitimate state
objective is the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties
xxx.[138] [citations omitted]

Again, the application of the compelling state interest test could result to
three situations of accommodation: First, mandatory accommodation would
result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests,permissive
accommodation results. Finally, if the Court finds that that establishment
concerns prevail over potential accommodation interests, then it must rule that
the accommodation is prohibited.

One of the central arguments in Mr. Justice Carpios dissent is that only
permissive accommodation can carve out an exemption from a law of general
application. He posits the view that the law should prevail in the absence of a
legislative exemption, and the Court cannot make the accommodation or
exemption.

Mr. Justice Carpios position is clearly not supported by Philippine

jurisprudence. The cases of American Bible
Society, Ebralinag, and Victoriano demonstrate that our application of the
doctrine of benevolent neutrality-accommodation covers not only the grant
of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is
possible, even if anchored directly on an invocation of the Free Exercise Clause
alone, rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet

wherein the Court granted an accommodation/exemption to a religious act from the
application of general penal laws, permissive accommodation based on religious
freedom has been granted with respect to one of the crimes penalized under the
Revised Penal Code, that of bigamy.

In the U.S. case of Reynolds v. United States,[139] the U.S.

Court expressly denied to Mormons an exemption from a general federal law
criminalizing polygamy, even if it was proven that the practice constituted a
religious duty under their faith.[140] In contradistinction, Philippine law
accommodates the same practice among Moslems, through a legislative act. For
while the act of marrying more than one still constitutes bigamy under the Revised
Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime
of bigamy shall not apply to a person marriedunder Muslim law. Thus, by
legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized
this accommodation when, in his dissent in our Decision dated August 4, 2003 and
citing Sulu Islamic Association of Masjid Lambayong v. Malik,[141] he stated
that a Muslim Judge is not criminally liable for bigamy because Sharia law allows
a Muslim to have more than one wife.

From the foregoing, the weakness of Mr. Justice Carpios permissive-

accommodation only advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that the guaranty of religious liberty
as embodied in the Free Exercise Clause does not require the grant of exemptions
from generally applicable laws to individuals whose religious practice conflict
with those laws, his theory is infirmed by the showing that the benevolent
neutrality approach which allows for both mandatory and permissive
accommodations was unequivocally adopted by our framers in the Philippine
Constitution, our legislature, and our jurisprudence.

Parenthetically, it should be pointed out that a permissive accommodation-

only stance is the antithesis to the notion that religion clauses, like the other
fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that
the test in Sherbert is not applicable when the law in question is a generally
applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded
that there is no question that in the Philippine context, accommodations are made,
the question remains as to how far the exemptions will be made and who would
make these exemptions.

On this point, two things must be clarified: first, in relation to criminal

statutes, only the question of mandatory accommodation is uncertain, for
Philippine law and jurisprudence have, in fact, allowed legislative
accommodation. Second, the power of the Courts to grant exemptions in general
(i.e., finding that the Free Exercise Clause required the accommodation,
or mandatory accommodations) has already been decided, not just once, but
twice by the Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving
criminal laws of general application.

We hold that the Constitution itself mandates the Court to do so for the
following reasons.

First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent neutrality-
accommodation approach in Philippine jurisdiction is more pronounced and given
leeway than in the U.S.
 Second, the whole purpose of the accommodation theory, including the
notion of mandatory accommodations, was to address the inadvertent burdensome
effect that an otherwise facially neutral law would have on religious exercise. Just
because the law is criminal in nature, therefore, should not bring it out of the ambit
of the Free Exercise Clause. As stated by Justice OConnor in her concurring
opinion in Smith, [t]here is nothing talismanic about neutral laws of general
applicability or general criminal prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or intrude upon his religious
duties just as effectively as laws aimed at religion.[142]

Third, there is wisdom in accommodation made by the Court as this is the

recourse of minority religions who are likewise protected by the Free Exercise
Clause. Mandatory accommodations are particularly necessary to protect adherents
of minority religions from the inevitable effects of majoritarianism, which include
ignorance and indifference and overt hostility to the minority. As stated in our
Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of
the majority, thus not infrequently, they come into conflict with the religious
scruples of those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the injury to
religious conscience is so great and the advancement of public purposes so small
or incomparable that only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials are
frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these
cases, a constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena.

Fourth, exemption from penal laws on account of religion is not entirely an

alien concept, nor will it be applied for the first time, as an exemption of such
nature, albeit by legislative act, has already been granted to Moslem polygamy and
the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis--vis the
other fundamental rights in the Bill of Rights. It has been noted that unlike other
fundamental rights like the right to life, liberty or property, the Religion Clauses
are stated in absolute terms, unqualified by the requirement of due process,
unreasonableness, or lawful order. Only the right to free speech is comparable in
its absolute grant. Given the unequivocal and unqualified grant couched in the
language, the Court cannot simply dismiss a claim of exemption based on the Free
Exercise Clause, solely on the premise that the law in question is a general criminal
law. [143] If the burden is great and the sincerity of the religious belief is not in
question, adherence to the benevolent neutrality-accommodation approach
require that the Court make an individual determination and not dismiss the claim
outright.

At this point, we must emphasize that the adoption of the benevolent

neutrality-accommodation approach does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. This is an erroneous
reading of the framework which the dissent of Mr. Justice Carpio seems to
entertain. Although benevolent neutrality is the lens with which the Court ought
to view religion clause cases, the interest of the state should also be afforded
utmost protection. This is precisely the purpose of the testto draw the line
between mandatory, permissible and forbidden religious exercise. Thus, under the
framework, the Court cannot simply dismiss a claim under the Free Exercise
Clause because the conduct in question offends a law or the orthodox view, as
proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the
religion clauses of the Constitution.[144] As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the
difficult questions of judgment in determining the degree of burden on religious
practice or importance of the state interest or the sufficiency of the means adopted
by the state to pursue its interest, the Court can set a doctrine on the ideal towards
 which religious clause jurisprudence should be directed.We here lay down the
doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but more
importantly, because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which
the Court should take off in interpreting religion clause cases. The ideal
towards which this approach is directed is the protection of religious liberty
not only for a minority, however small- not only for a majority, however
large but for each of us to the greatest extent possible within flexible
constitutional limits.[145]

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As

mentioned, what remained to be resolved, upon which remand was necessary,
pertained to the final task of subjecting this case to the careful application of the
compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the
transmittal of the Hearing Officers report,[146] along with the evidence submitted by
the OSG, this case is once again with us, to resolve the penultimate question of
whether respondent should be found guilty of the administrative charge of
disgraceful and immoral conduct. It is at this point then that we examine the report
and documents submitted by the hearing officer of this case, and apply the three-
step process of the compelling state interest test based on the evidence presented
by the parties, especially the government.

On the sincerity of religious belief, the Solicitor General

categorically concedes that the sincerity and centrality of respondents claimed
religious belief and practice are beyond serious doubt.[147] Thus, having previously
established the preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the free exercise of
respondents religious beliefs, and there being no doubt as to the sincerity and
centrality of her faith to claim the exemption based on the free exercise clause,
the burden shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least restrictive means of
achieving that objective.

A look at the evidence that the OSG has presented fails to demonstrate
the gravest abuses, endangering paramount interests which could limit or
override respondents fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its
legitimate state objective is the least intrusive means.

The OSG merely offered the following as exhibits and their purposes:
1. EXHIBIT A-OSG AND SUBMARKING The September 30, 2003 Letter to the
OSG of Bro. Raymond B. Leach, Legal Representative of
the Watch Tower Bible and Tract Society of the Philippines, Inc.

PURPOSE: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondents claimed religious belief and practice.

2. EXHIBIT B-OSG AND SUBMARKING The duly notarized certification

dated September 30, 2003 issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondents

claimed religious belief and practice; and (2) to prove that the Declaration of
Pledging Faithfulness, being a purely internal arrangement within the
congregation of the Jehovahs Witnesses, cannot be a source of any legal
protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a

compelling interest to override respondents claimed religious belief and practice, in
order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution[148] and the Family Code,[149] argues that
marriage and the family are so crucial to the stability and peace of the nation that
the conjugal arrangement embraced in the Declaration of Pledging Faithfulness
should not be recognized or given effect, as it is utterly destructive of the avowed
institutions of marriage and the family for it reduces to a mockery these legally
exalted and socially significant institutions which in their purity demand respect
and dignity.[150]

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the

Solicitor General in so far as he asserts that the State has a compelling interest in
the preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against concubinage
and bigamy. He also argues that in dismissing the administrative complaint against
respondent, the majority opinion effectively condones and accords a semblance of
legitimacy to her patently unlawful cohabitation... and facilitates the circumvention
of the Revised Penal Code. According to Mr. Justice Carpio, by choosing to turn a
blind eye to respondents criminal conduct, the majority is in fact recognizing a
practice, custom or agreement that subverts marriage. He argues in a similar
fashion as regards the states interest in the sound administration of justice.

There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in the sound
administration of justice. Indeed, the provisions by which respondents relationship
is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code,
and even the provisions on marriage and family in the Civil Code and Family
Code, all clearly demonstrate the States need to protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as

one of the fundamental rights in our Constitution. It is a fundamental right that
enjoys a preferred position in the hierarchy of rights the most inalienable and
sacred of human rights, in the words of Jefferson. Hence, it is not enough to
contend that the states interest is important, because our Constitution itself holds
the right to religious freedom sacred. The State must articulate in specific terms the
state interest involved in preventing the exemption, which must be compelling, for
only the gravest abuses, endangering paramount interests can limit the fundamental
right to religious freedom. To rule otherwise would be to emasculate the Free
Exercise Clause as a source of right by itself.

Thus, it is not the States broad interest in protecting the institutions of

marriage and the family, or even in the sound administration of justice that must be
weighed against respondents claim, but the States narrow interest in refusing to
make an exception for the cohabitation which respondents faith finds moral. In
other words, the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted.[151] This, the Solicitor
General failed to do.

To paraphrase Justice Blackmuns application of the compelling interest

test, the States interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not, in
fact, attempt to enforce that prohibition. In the case at bar, the State has not
evinced any concrete interest in enforcing the concubinage or bigamy charges
against respondent or her partner. The State has never sought to prosecute
respondent nor her partner. The States asserted interest thus amounts only to the
symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the
words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our
Decision, dated August 4, 2003, to deny the exemption would effectively break up
an otherwise ideal union of two individuals who have managed to stay together as
husband and wife [approximately twenty-five years] and have the effect of
defeating the very substance of marriage and the family.

The Solicitor General also argued against respondents religious freedom on

the basis of morality, i.e., that the conjugal arrangement of respondent and her live-
in partner should not be condoned because adulterous relationships are constantly
frowned upon by society;[152] and that State laws on marriage, which are moral in
nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices
should not be permitted to override laws relating to public policy such as those of
marriage.[153]

The above arguments are mere reiterations of the arguments raised by Mme.
Justice Ynares-Santiago in her dissenting opinion to our Decision dated August 4,
2003, which she offers again in toto. These arguments have already been addressed
in our decision dated August 4, 2003.[154] In said Decision, we noted that Mme.
Justice Ynares-Santiagos dissenting opinion dwelt more on the standards of
morality, without categorically holding that religious freedom is not in
issue.[155] We, therefore, went into a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in
our constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.[156] Thus, when the law speaks
of immorality in the Civil Service Law or immoral in the Code of Professional
Responsibility for lawyers,[157] or public morals in the Revised Penal Code,[158] or
morals in the New Civil Code,[159] or moral character in the Constitution,[160] the
distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind;[161]

(b) Although the morality contemplated by laws is secular, benevolent

neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests;[162]

(c) The jurisdiction of the Court extends only to public and secular
morality. Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority.[163]

(d) Having distinguished between public and secular morality and

religious morality, the more difficult task is determining which immoral acts
under this public and secular morality fall under the phrase disgraceful and
immoral conduct for which a government employee may be held administratively
liable.[164] Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal.[165]
 (e) While there is no dispute that under settled jurisprudence, respondents
conduct constitutes disgraceful and immoral conduct, the case at bar involves the
defense of religious freedom, therefore none of the cases cited by Mme. Justice
Ynares-Santiago apply.[166] There is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the Jehovahs
Witnesses under the same circumstances as respondent will not prevail over the
laws on adultery, concubinage or some other law. We cannot summarily conclude
therefore
that her conduct is likewise so odious and barbaric as to be immoral and
punishable by law.[167]

Again, we note the arguments raised by Mr. Justice Carpio with respect to
charging respondent with conduct prejudicial to the best interest of the service, and
we reiterate that the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of conduct prejudicial to the best
interest of the service.Indeed, there is no evidence of the alleged prejudice to the
best interest of the service.[168]

Mr. Justice Carpios slippery slope argument, on the other hand, is non-
sequitur. If the Court grants respondent exemption from the laws which respondent
Escritor has been charged to have violated, the exemption would not apply to
Catholics who have secured church annulment of their marriage even without a
final annulment from a civil court.First, unlike Jehovahs Witnesses, the Catholic
faith considers cohabitation without marriage as immoral. Second, but more
important, the Jehovahs Witnesses have standards and procedures which must be
followed before cohabitation without marriage is given the blessing of the
congregation. This includes an investigative process whereby the elders of the
congregation verify the circumstances of the declarants. Also, the Declaration is
not a blanket authority to cohabit without marriage because once all legal
impediments for the couple are lifted, the validity of the Declaration ceases, and
the congregation requires that the couple legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.

Nevertheless, insofar as he raises the issue of equality among religions, we look to
the words of the Religion Clauses, which clearly single out religion for both a
benefit and a burden: No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof On its face, the language grants a unique
advantage to religious conduct, protecting it from governmental imposition; and
imposes a unique disadvantage, preventing the government from supporting it. To
understand this as a provision which puts religion on an equal footing with other
bases for action seems to be a curious reading.There are no free exercise of
establishment provisions for science, sports, philosophy, or family relations. The
language itself thus seems to answer whether we have a paradigm of equality or
liberty; the language of the Clause is clearly in the form of a grant of liberty. [169]

In this case, the governments conduct may appear innocent and

nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to protect the
minority from the majority, the question of which perspective is appropriate would
seem easy to answer. Moreover, the text, history, structure and values implicated in
the interpretation of the clauses, all point toward this perspective. Thus, substantive
equalitya reading of the religion clauses which leaves both politically dominant
and the politically weak religious groups equal in their inability to use the
government (law) to assist their own religion or burden othersmakes the most
sense in the interpretation of the Bill of Rights, a document designed to protect
minorities and individuals from mobocracy in a democracy (the majority or a
coalition of minorities). [170]

As previously discussed, our Constitution adheres to the benevolent

neutrality approach that gives room for accommodation of religious exercises as
required by the Free Exercise Clause.[171] Thus, in arguing that respondent should
be held administratively liable as the arrangement she had was illegal per
se because, by universally recognized standards, it is inherently or by its very
nature bad, improper, immoral and contrary to good conscience, [172] the Solicitor
General failed to appreciate that benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interests.[173]

Finally, even assuming that the OSG has proved a compelling state
interest, it has to further demonstrate that the state has used the least
intrusive means possible so that the free exercise is not infringed any more
than necessary to achieve the legitimate goal of the state, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on religious
liberties.[174] Again, the Solicitor General utterly failed to prove this element of the
test. Other than the two documents offered as cited above which established the
sincerity of respondents religious belief and the fact that the agreement was an
internal arrangement within respondents congregation, no iota of evidence was
offered. In fact, the records are bereft of even a feeble attempt to procure any such
evidence to show that the means the state adopted in pursuing this compelling
interest is the least restrictive to respondents religious freedom.

Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritors conjugal arrangement cannot be penalized as
she has made out a case for exemption from the law based on her fundamental
right to freedom of religion. The Court recognizes that state interests must be
upheld in order that freedoms - including religious freedom - may be enjoyed. In
the area of religious exercise as a preferred freedom, however, man stands
accountable to an authority higher than the state, and so the state interest sought to
be upheld must be so compelling that its violation will erode the very fabric of the
state that will also protect the freedom. In the absence of a showing that such state
interest exists, man must be allowed to subscribe to the Infinite.

IN VIEW WHEREOF, the instant administrative complaint

is DISMISSED.
 SO ORDERED.

REYNATO S. PUNO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

[G.R. No. 136351. July 28, 1999]

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the

COMMISSION ON ELECTIONS, respondents.

DECISION
MELO, J.:

Before us is a petition for certiorari with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction questioning the resolution of the Comelec En
Banc dated December 8, 1998 in SPA Case No. 98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:

1. AMEND and RECTIFY the dispositive portion of the Resolution of the

Commission (First Division) in SPA No. 98-019 promulgated on May 5, 1998, to read
as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS

the Petition. Respondent JOSE PEMPE MIRANDAs certificate of candidacy for the
position of mayor of Santiago City in the May 11, 1998 national and local elections is
hereby DENIED DUE COURSE AND/OR CANCELLED.

SO ORDERED.

2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as

mayor of Santiago City in the May 11, 1998 election and CANCEL the Certificate of
Canvass and Proclamation (C.E. form 25) issued therefor;

3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE,

PREPARE a new certificate of canvass & proclamation and PROCLAIM the winning
candidate among those voted upon as the duly elected mayor of Santiago City in the
May 11, 1998 election; and

4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to
the Office of the President of the Philippines; the Department of Interior and Local
Government; the Department of Finance, and the Secretary of the Sangguniang
Panglunsod of Santiago City.

SO ORDERED.

(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier
resolution of the First Division of the Comelec dated May 16, 1998, dismissing private
respondents petition to declare the substitution of Jose Pempe Miranda by petitioner as candidate
for the City of Santiagos mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
 On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City, Isabela,
filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998
elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due
Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA
No. 98-019. The petition was GRANTED by the Comelec in its resolution dated May 5, 1998
(pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner
Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a
substitute for his father, Jose Pempe Miranda.
During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty
seat, with petitioner garnering 22,002 votes, 1,666 more votes than private respondent who got
only 20, 336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution
with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order,
which was docketed as SPA No. 98-288. He prayed for the nullification of petitioners certificate
of candidacy for being void ab initio because the certificate of candidacy of Jose Pempe
Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due
course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98-288 motu proprio (pp.
57-61, Rollo). Private respondent moved for reconsideration (pp. 62-72, Rollo). On December 8,
1998, the Comelec En Banc rendered the assailed decision aforequoted, resolving to GRANT the
motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his
father as candidate for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a petition for certiorari,
with prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction. On December 11, 1998, the Court resolved to issue a temporary restraining order and
to require respondents to comment on the petition. On December 14, 1998, private respondent
filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec,
through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court
required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice
asked for an extension of the period. Without granting the motions for extension of time to file
consolidated reply, the Court decided to resolve the controversy in favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:
1. Whether the annulment of petitioners substitution and proclamation was issued without
jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and
2. Whether the order of the Comelec directing the proclamation of the private respondent was
issued with grave abuse of discretion amounting to lack of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the
annulment of the substitution and proclamation of petitioner.
 On the matter of jurisdiction, there is no question that the case at hand is within the
exclusive original jurisdiction of the Comelec. As early as in Herrera vs. Baretto (25 Phil. 245
[1913]), this Court had occasion to apply the following principles:

Jurisdiction is the authority to hear and determine a causethe right to act in a

case. Since it is the power to hear and determine, it does not depend either upon the
regularity of the exercise of that power or upon the rightfulness of the decision
made. Jurisdiction should therefore be distinguished from the exercise of
jurisdiction. The authority to decide a cause at all, and not the decision rendered
therein, is what makes up jurisdiction. Where there is jurisdiction over the subject
matter, as we have said before, the decision of all other questions arising in the case is
but an exercise of that jurisdiction.

(p. 251)

On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the
Comelecs action nullifying the substitution by and proclamation of petitioner for the mayoralty
post of Santiago City, Isabela is proper and legally sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus
Election Code which provides:

SEC. 77. Candidates in case of death, disqualification or withdrawal. If after the last
day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a
person belonging to, and certified by, the same political party may file a certificate of
candidacy to replace the candidate who died, withdrew or was disqualified. The
substitute candidate nominated by the political party concerned may file his certificate
of candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification
should occur between the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the political
subdivision where he is a candidate, or, in the case of candidates to be voted for by the
entire electorate of the country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe Miranda in
the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing
substitution of a candidate who has been disqualified for any cause.
While there is no dispute as to whether or not a nominee of a registered or accredited
political party may substitute for a candidate of the same party who had been disqualified for any
cause, this does not include those cases where the certificate of candidacy of the person to be
substituted had been denied due course and cancelled under Section 78 of the Code.
 Expressio unius est exclusio alterius. While the law enumerated the occasions where a
candidate may be validly substituted, there is no mention of the case where a candidate is
excluded not only by disqualification but also by denial and cancellation of his certificate of
candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much
in the same way that a nuisance candidate whose certificate of candidacy is denied due course
and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they
could have so easily and conveniently included those persons whose certificates of candidacy
have been denied due course and/or cancelled under the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just any
person, but only an official candidate of a registered or accredited political party may be
substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly
ruled that a cancelled certificate does not give rise to a valid candidacy (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate in much
the same way as any person who has not filed any certificate of candidacy at all can not, by any
stretch of the imagination, be a candidate at all.
The law clearly provides:

SEC. 73. Certificate of candidacy No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein.

By its express language, the foregoing provision of law is absolutely mandatory. It is

but logical to say that any person who attempts to run for an elective office but does
not file a certificate of candidacy, is not a candidate at all. No amount of votes would
catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held
that a certificate of candidacy filed beyond the period fixed by law is void, and the
person who filed it is not, in law, a candidate. Much in the same manner as a person
who filed no certificate of candidacy at all and a person who filed it out of time, a
person whose certificate of candidacy is cancelled or denied due course is no
candidate at all. No amount of votes should entitle him to the elective office aspired
for.

The evident purposes of the law in requiring the filing of certificates of candidacy and in
fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the
regular election, the candidates among whom they are to make the choice, and (b) to avoid
confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the
choice or election by the voters to the duly registered candidates, there might be as many persons
voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a
mark to identify the votes in favor of a candidate for another office in the same
election. (Monsale vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of candidacy rests at the very
core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily,
this explains why the law provides for grounds for the cancellation and denial of due course to
certificates of candidacy.
 After having considered the importance of a certificate of candidacy, it can be readily
understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at
all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear
and unequivocal that only an official candidate of a registered or accredited party may be
substituted, there demonstrably cannot be any possible substitution of a person whose certificate
of candidacy has been cancelled and denied due course.
Also, under ejusdem generis rule, where a general word or phrase (such as disqualification
for any cause in this case) follows an enumeration of particular and specific words of the same
class (such as the words dies and withdraws in the instant case) or where the latter follow the
former, the general word or phrase is to be construed to include, or to be restricted to persons,
things or cases akin to, resembling, or of the same kind or class as those specifically mentioned
(see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed
a valid certificate of candidacy, otherwise his political party would not be allowed to field a
substitute candidate in his stead under Section 77 of the Code. In the case of withdrawal of
candidacy, the withdrawing candidate is required to have duly filed a valid certificate of
candidacy in order to allow his political party to field a substitute candidate in his stead. Most
reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is
likewise an indispensable requisite in the case of a substitution of a disqualified candidate under
the provisions of Section 77 of the Code, just as it is in the two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et
absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience
and absurdity shall in all cases be adopted. To include those disqualified candidates whose
certificate of candidacy had likewise been denied due course and/or cancelled among those who
may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where
a substitute is allowed to take the place of somebody who had not been a candidate in the first
placea person who did not have a valid certificate of candidacy prior to substitution. Nemo dat
quod non habet. What right can a non-candidate pass on to his substitute? Clearly, there is none
because no one can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that the concept
of a substitute presupposes the existence of the person to be substituted, for how can a person
take the place of somebody who does not exist or who never was. The Court has no other choice
but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the
existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not
a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow
the so-called substitute to file a new and original certificate of candidacy beyond the period for
the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred
by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a simple case
of hair-splitting. A candidate may not be qualified to run for election but may have filed a valid
certificate of candidacy. Another candidate may likewise be not qualified and at the same time
not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also
cancelled and/or denied due course. Or, a third candidate may be qualified but, his certificate of
candidacy may be denied due course and/or cancelled. This is possible because the grounds for
disqualification (see: Omnibus Election Code, Section 68 Disqualifications) are totally separate
and distinct from the grounds for cancellation and/or denying due course to a certificate of
candidacy (Ibid., Section 69 nuisance candidates; and Section 78 material
misrepresentation). Only the candidate who had a valid certificate of candidacy may be
substituted.
The question to settle next is whether or not aside from Joel Pempe Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had
likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by

respondent for the position of Mayor for the City of Santiago be not given due
course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST

DIVISION) GRANTS the Petition. Respondent JOSE Pempe MIRANDA is hereby
DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in
the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in
SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the
petition was GRANTED, there being no qualification on the matter whatsoever. The
disqualification was simply ruled over and above the granting of the specific prayer for denial of
due course and cancellation of the certificate of candidacy. It may be stressed at this instance that
the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or
not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-
288 in its December 8, 1998 resolution.
As regards the procedural matter in the present petition for certiorari, the following
considerations are also in point:
 It may be relevantly stressed that the review powers of the Supreme Court over decisions of
the Constitutional Commissions, in general, and the Commission on Elections, in particular,
were rather particularly defined and limited by the 1987 Constitution, as they were also
circumscribed in the 1973 Constitution, to a petition for review on certiorari under Rule
65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251

[1979]) as regards recourse to this Court with respect to rulings of the Civil Service
Commissionwhich is that judgments of the Commission may be brought to the
Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is
a definite tendency to enhance and invigorate the role of the Commission on Elections
as the independent constitutional body charged with the safeguarding of free, peaceful
and honest elections. The framers of the new Constitution must be presumed to have
definite knowledge of what it means to make the decisions, orders and rulings of the
Commission subject to review by the Supreme Court. And since instead of
maintaining that provision intact, it ordained that the Commissions actuations be
instead brought to the Supreme Court on certiorari, We cannot insist that there was no
intent to change the nature of the remedy, considering that the limited scope
of certiorari, compared to a review, is well known in remedial law.

xxx

It should also be noted that under the new Constitution, as under the 1973 Charter,
any decision, order, or ruling of each Commission may be brought to the Supreme
Court on certiorari, which, as Aratuc tells us, technically connotes something less
than saying that the same shall be subject to review by the Supreme Court, which in
turn suggests an appeal by review by petition for review under Rule 45. Therefore, our
jurisdiction over cases emanating from the Civil Service Commission is limited to
complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to
lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become a distinguished

Member of this Court, Mr. Justice Florenz Regalado responded to Commissioner Bernas query
during the deliberations of the 1987 Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are
the grounds for certiorari?
 MR. REGALADO. The Committee refers specifically to a technical term of review
by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of
Court that laid down the three grounds.

(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in

Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A Commentary,
1996 Edition, p. 903.)

Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule

65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with
grave abuse of discretion.
Without jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction refers to
the case where the court has jurisdiction, but it transcended the same or acted without any
statutory authority; grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed an error in the exercise
of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial
measure, to correct. The only issue that may be taken cognizance of in the present case is
whether or not the Comelec committed grave abuse of discretion in rendering the assailed
decision.
It is well-settled that an act of a court or tribunal may only be considered to have been done
in grave abuse of discretion when the same was performed in a capricious or whimsical exercise
of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty
enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de
Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders,
163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An
error of judgment committed in the exercise of its legitimate jurisdiction is not the same as grave
abuse of discretion. An abuse of discretion is not sufficient by itself to justify the issuance of a
writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion
was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).
Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the
substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election
Code, was allowed to substitute for disqualified the candidate Jose Pempe Miranda. Petitioner
also contends that it was an act of grave abuse of discretion for the Comelec to direct the
proclamation of private respondent as the winning candidate in the May 11, 1998 election.
Petitioner further faults the Comelec for amending the dispositive portion of its resolution in
SPA No. 98-019, which was not elevated to it on review, the same having already attained
finality by then.
While it may be conceded that the Comelec stepped overboard and acted in excess of its
jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in which was
by then already final, it does not necessarily follow that the Comelec also committed grave abuse
of discretion in resolving to grant private respondents motion for reconsideration by nullifying
the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us in
this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.
The question to answer is: will the Comelecs act which may constitute an excess of
jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its
judgment in the separate and distinct case of SPA No. 98-288 as well? Clearly, non
sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA
No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in favor of
private respondent. As earlier pointed out, the result in the dispositive portion of the December 8,
1998 resolution pertaining to the issues involved in SPA No. 98-288 is correct insofar as it
annulled the election and proclamation of Joel G. Miranda. But even assuming for the sake of
argument that it is not, still, this supposed error does not constitute grave abuse of discretion
which may be annulled and reversed in the present petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98-288 is the fact
that former candidate Jose Pempe Mirandas certificate of candidacy was denied due course and
cancelled.There is no dispute that the complaint or petition filed by private respondent in SPA
No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose Pempe
Miranda (Rollo, pp. 26-31).There is likewise no question that the said petition was GRANTED
without any qualification whatsoever. It is rather clear, therefore, that whether or not the
Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact
remains that the said petition was granted and that the certificate of candidacy of Jose
Pempe Miranda was denied due course and cancelled. In fact, it was not even necessary for
the Comelec to reiterate this in its December 8, 1998 resolution. At best, the Comelecs motu
proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that
the certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did not
depend on the en banc resolution dated December 8, 1998 of the Comelec. It stems from the fact
that the May 5, 1998 resolution GRANTED private respondents Petition to Deny Due Course to
and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the
instant case and that it was a valid ground for the granting of the petition in SPA No. 98-
019. Also, there appears to be sound basis to rule that a certificate of candidacy which has been
denied due course on account of misrepresentation is, in every legal contemplation, no certificate
at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelecs rightful
exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish
would only constitute an error of judgment and definitely not grave abuse of discretion. And, of
course, errors of judgment may not be corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her dissenting
opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the majority of the
collegiate body and was not adopted by the Commission en banc. This Court in the
present certiorari proceedings cannot substitute its judgment for that of the Comelec without
violating the Constitution and the Rules of Court on the matter. The Comelecs decision is not
subject to appeal to this Court. We may only strike out a Comelec decision if it was rendered
without jurisdiction, in excess thereof, or with grave abuse of discretion amounting to lack of
jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce and submit
to the sovereign will of the electorate, as expressed by their votes. We should always be
reminded that ours is a government of laws not of men. If this Court should fold its arms and
refuse to apply the law at every clamor of the majority of the supposed constituency, where shall
order and justice lie? Without the least intention to degrade, where shall people power end, and
where shall law and justice begin? Would the apparent results of the canvassing of votes justify
this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The
Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the
laws of the Republic for and under which it exists. Besides, only history will discern whether
Jose Pempe Mirandas filing of a certificate of candidacy for a 4th term and the intended
substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political
dynasty disdained and abhorred by our Constitution which declared:

SEC. 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law.

(Article II, 1987 Constitution)

The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings about
the disqualification of petitioner in the mayoralty race. In this regard, what was said in Nolasco
vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled:

Our case law is now settled that in a mayoralty election, the candidate who obtained
the second highest number of votes, in this case Alarilla, cannot be proclaimed winner
in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly
recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.:

xxxxxxxxx

We likewise find no grave abuse of discretion on the part of the Comelec in denying
petitioner Julius O. Garcias petition to be proclaimed mayor in view of the
disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified is now settled. The
doctrinal instability caused by see-sawing rulings has since been removed. In the
latest ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The second placer is
just that, a second placer. He lost the elections. He was repudiated by either a majority
or plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would
have substantially changed. We are not prepared to extrapolate the results under the
circumstances.

Garcias plea that the votes case for Reyes be invalidated is without merit. The votes
cast for Reyes are presumed to have been cast in the belief that Reyes was qualified
and for that reason can be treated as stray, void and meaningless. The subsequent
finding that he is disqualified cannot retroact to the date of the elections as to
invalidate the votes cast for him.

Consequently, respondent Comelec committed grave abuse of discretion insofar as it

failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec
(176 SCRA 1 [1989]).

(pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the
above-cited settled ruling consistently applied by this Court since the case of Labo vs.
Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs.
Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the election results
pointing to petitioner as the electors choice for the mayoralty post, we should now close our eyes
to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court
duly notes that the said election results point to the fact that private respondent was not then the
choice of the people of Santiago City, Isabela. This Court has no authority under any law to
impose upon and compel the people of Santiago City to accept private respondent as their
mayor. The law on succession under section 44 of Republic Act 7160, otherwise known as the
Local Government Code, would then apply. Said provision relevantly states:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become the
governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice
governor, mayor, or vice mayor, the highest ranking sanggunian member, or, in case
of his permanent disability, the second highest ranking sanggunian member, shall
become governor, vice governor, mayor or vice mayor, as the case may
be. Subsequent vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.

x x x.

For purposes of this Chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian

shall be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each district in the immediately
preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to
ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is,
however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98-
288 by DELETING the portion directing the city board of canvassers to reconvene and proclaim
the winning candidate from among those voted upon during the May 11, 1998 elections. The law
on succession should be enforced. Accordingly, the restraining order issued in this case is
forthwith LIFTED.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago,
JJ., concur.
Davide, Jr., C.J., on leave.
Romero, and Panganiban, JJ., see dissenting opinion.
Puno, and Vitug, JJ., joins dissenting opinion of J. Romero.
Kapunan, and Pardo, JJ., no part.

EN BANC

[G.R. No. 105938. September 20, 1996]

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ,

JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P.
LAZATIN, and EDUARDO U. ESCUETA, petitioners, vs. THE
HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF
THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT, and RAUL S.
ROCO, respondents.
 [G.R. No. 108113. September 20, 1996]

PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE

REPUBLIC OF THE PHILIPPINES, respondents.

DECISION
KAPUNAN, J.:

These cases touch the very cornerstone of every State's judicial system, upon
which the workings of the contentious and adversarial system in the Philippine legal
process are based - the sanctity of fiduciary duty in the client-lawyer relationship. The
fiduciary duty of a counsel and advocate is also what makes the law profession a
unique position of trust and confidence, which distinguishes it from any other calling. In
this instance, we have no recourse but to uphold and strengthen the mantle of
protection accorded to the confidentiality that proceeds from the performance of the
lawyer's duty to his client.
The facts of the case are undisputed.
The matters raised herein are an offshoot of the institution of the Complaint on July
31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the
Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as
one of the principal defendants, for the recovery of alleged ill-gotten wealth, which
includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case
No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." [1]
Among the defendants named in the case are herein petitioners Teodoro Regala,
Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P.
Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent
Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion,
Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA
Law Firm performed legal services for its clients, which included, among others, the
organization and acquisition of business associations and/or organizations, with the
correlative and incidental services where its members acted as incorporators, or simply,
as stockholders. More specifically, in the performance of these services, the members
of the law firm delivered to its client documents which substantiate the client's equity
holdings, i.e., stock certificates endorsed in blank representing the shares registered in
the client's name, and a blank deed of trust or assignment covering said shares. In the
course of their dealings with their clients, the members of the law firm acquire
information relative to the assets of clients as well as their personal and business
circumstances. As members of the ACCRA Law Firm, petitioners and private
respondent Raul Roco admit that they assisted in the organization and acquisition of the
companies included in Civil Case No. 0033, and in keeping with the office
practice, ACCRA lawyers acted as nominees-stockholders of the said corporations
involved in sequestration proceedings.[2]
 On August 20, 1991, respondent Presidential Commission on Good Government
(hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended
Complaint" and "Third Amended Complaint" which excluded private respondent Raul S.
Roco from the complaint in PCGG Case No. 33 as party-defendant.[3] Respondent
PCGG based its exclusion of private respondent Roco as party-defendant on his
undertaking that he will reveal the identity of the principal/s for whom he acted as
nominee/stockholder in the companies involved in PCGG Case No. 33. [4]
Petitioners were included in the Third Amended Complaint on the strength of the
following allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion,
Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja
G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law
offices (ACCRA) plotted, devised, schemed. conspired and confederated with each
other in setting up, through the use of the coconut levy funds, the financial and
corporate framework and structures that led to the establishment of UCPB,
UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy
funded corporations, including the acquisition of San Miguel Corporation shares and
its institutionalization through presidential directives of the coconut
monopoly. Through insidious means and machinations, ACCRA, being the wholly-
owned investment arm, ACCRA Investments Corporation, became the holder of
approximately fifteen million shares representing roughly 3.3% of the total
outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA
Investments Corporation number 44 among the top 100 biggest stockholders of
UCPB which has approximately 1,400,000 shareholders. On the other hand,
corporate books show the name Edgardo J. Angara as holding
approximately 3,744 shares as of February, 1984.[5]
In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers
alleged that:

4.4. Defendants-ACCRA lawyers participation in the acts with which their co-
defendants are charged, was in furtherance of legitimate lawyering.

4.4.1. In the course of rendering professional and legal services to clients, defendants-
ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and
Eduardo U. Escueta, became holders of shares of stock in the corporations listed
under their respective names in Annex A of the expanded Amended Complaint as
incorporating or acquiring stockholders only and, as such, they do not claim any
proprietary interest in the said shares of stock.

4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976
of Mermaid Marketing Corporation, which was organized for legitimate business
purposes not related to the allegations of the expanded Amended
Complaint. However, he has long ago transferred any material interest therein and
therefore denies that the shares appearing in his name in Annex A of the expanded
Amended Complaint are his assets. [6]
 Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a
separate answer denying the allegations in the complaint implicating him in the alleged
ill-gotten wealth.[7]
Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR
OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG
similarly grant the same treatment to them (exclusion as parties-defendants) as
accorded private respondent Roco.[8] The Counter-Motion for dropping petitioners from
the complaint was duly set for hearing on October 18, 1991 in accordance with the
requirements of Rule 15 of the Rules of Court.
In its "Comment," respondent PCGG set the following conditions precedent for the
exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b)
submission of documents substantiating the lawyer-client relationship; and (c) the
submission of the deeds of assignments petitioners executed in favor of its clients
covering their respective shareholdings.[9]
Consequently, respondent PCGG presented supposed proof to substantiate
compliance by private respondent Roco of the conditions precedent to warrant the
latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to
respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a
previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit
dated March 8, 1989 executed by private respondent Roco as Attachment to the letter
aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated
September 21, 1988 to the respondent PCGG in behalf of private respondent Roco
originally requesting the reinvestigation and/or re-examination of the evidence of the
PCGG against Roco in its Complaint in PCGG Case No. 33.[10]
It is noteworthy that during said proceedings, private respondent Roco did not refute
petitioners' contention that he did actually not reveal the identity of the client involved in
PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom
he acted as nominee-stockholder.[11]
On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein
questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal
to comply with the conditions required by respondent PCGG. It held:
x x x.

ACCRA lawyers may take the heroic stance of not revealing the identity of the client
for whom they have acted, i.e. their principal, and that will be their choice. But until
they do identify their clients, considerations of whether or not the
privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The
ACCRA lawyers cannot excuse themselves from the consequences of their acts until
they have begun to establish the basis for recognizing the privilege; the
existence and identity of the client.
This is what appears to be the cause for which they have been impleaded by the
PCGG as defendants herein.

5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that
Roco has apparently identified his principal, which revelation could show the lack of
cause against him. This in turn has allowed the PCGG to exercise its power both
under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the
Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72).

The PCGG has apparently offered to the ACCRA lawyers the same conditions availed
of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7,
PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred
not to make the disclosures required by the PCGG.

The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as
party defendants. In the same vein, they cannot compel the PCGG to be accorded the
same treatment accorded to Roco.

Neither can this Court.

WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA
lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the
PCGG as accorded to Raul S. Roco is DENIED for lack of merit. [12]

ACCRA lawyers moved for a reconsideration of the above resolution but the same
was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the
petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds:
I

The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners

ACCRA lawyers who undisputably acted as lawyers in serving as nominee-
stockholders, to the strict application of the law of agency.
II

The Honorable Sandiganbayan committed grave abuse of discretion in not considering

petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore,
deserving of equal treatment.

1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to
reveal, the identities of the client(s) for whom he acted as nominee-stockholder.
 2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the
identities of the client(s), the disclosure does not constitute a substantial distinction
as would make the classification reasonable under the equal protection clause.
3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of
Mr. Roco in violation of the equal protection clause.
III

The Honorable Sandiganbayan committed grave abuse of discretion in not holding

that, under the facts of this case, the attorney-client privilege prohibits petitioners
ACCRA lawyers from revealing the identity of their client(s) and the other
information requested by the PCGG.

1. Under the peculiar facts of this case, the attorney-client privilege includes the identity
of the client(s).
2. The factual disclosures required by the PCGG are not limited to the identity of
petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters.
IV

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring

that the dropping of party-defendants by the PCGG must be based on reasonable and
just grounds and with due consideration to the constitutional right of petitioners
ACCRA lawyers to the equal protection of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of
the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus,
he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing
respondent Sandiganbayan's resolution on essentially the same grounds averred by
petitioners in G.R. No. 105938.
Petitioners contend that the exclusion of respondent Roco as party-defendant in
PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged
undertaking to divulge the identity of his client, giving him an advantage over them who
are in the same footing as partners in the ACCRA law firm. Petitioners further argue that
even granting that such an undertaking has been assumed by private respondent Roco,
they are prohibited from revealing the identity of their principal under their sworn
mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of
information obtained during such lawyer-client relationship.
Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that
the revelation of the identity of the client is not within the ambit of the lawyer-client
confidentiality privilege, nor are the documents it required (deeds of assignment)
protected, because they are evidence of nominee status.[13]
In his comment, respondent Roco asseverates that respondent PCGG acted
correctly in excluding him as party-defendant because he "(Roco) has not filed an
Answer. PCGG had therefore the right to dismiss Civil Case No. 0033 as to Roco
`without an order of court by filing a notice of dismissal,'"[14] and he has undertaken to
identify his principal.[15]
Petitioners' contentions are impressed with merit.
I

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants

to force them to disclose the identity of their clients. Clearly, respondent PCGG is not
after petitioners but the bigger fish as they say in street parlance. This ploy is quite clear
from the PCGGs willingness to cut a deal with petitioners -- the names of their clients in
exchange for exclusion from the complaint. The statement of the Sandiganbayan in its
questioned resolution dated March 18, 1992 is explicit:

ACCRA lawyers may take the heroic stance of not revealing the identity of the client
for whom they have acted, i.e., their principal, and that will be their choice. But until
they do identify their clients, considerations of whether or not the privilege claimed by
the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers
cannot excuse themselves from the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existence and identity of the
client.

This is what appears to be the cause for which they have been impleaded by the
PCGG as defendants herein. (Underscoring ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division,
entitled Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government
respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on
December 5, 1991 that the PCGG wanted to establish through the ACCRA that their so
called client is Mr. Eduardo Cojuangco; that it was Mr. Eduardo Cojuangco who
furnished all the monies to those subscription payments in corporations included in
Annex A of the Third Amended Complaint; that the ACCRA lawyers executed deeds of
trust and deeds of assignment, some in the name of particular persons, some in blank.
We quote Atty. Ongkiko:

ATTY. ONGKIKO:

With the permission of this Hon. Court. I propose to establish through these ACCRA
lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr.
Eduardo Cojuangco who furnished all the monies to these subscription payments of
these corporations who are now the petitioners in this case. Third, that these lawyers
executed deeds of trust, some in the name of a particular person, some in blank. Now,
these blank deeds are important to our claim that some of the shares are actually being
held by the nominees for the late President Marcos. Fourth, they also executed deeds
of assignment and some of these assignments have also blank assignees. Again, this is
important to our claim that some of the shares are for Mr. Cojuangco and some are for
Mr. Marcos. Fifth, that most of these corporations are really just paper
corporations. Why do we say that? One: There are no really fixed sets of officers, no
fixed sets of directors at the time of incorporation and even up to 1986, which is the
crucial year. And not only that, they have no permits from the municipal authorities in
Makati. Next, actually all their addresses now are care of Villareal Law Office. They
really have no address on records. These are some of the principal things that we
would ask of these nominees stockholders, as they called themselves. [16]

It would seem that petitioners are merely standing in for their clients as defendants
in the complaint. Petitioners are being prosecuted solely on the basis of activities and
services performed in the course of their duties as lawyers. Quite obviously, petitioners
inclusion as co-defendants in the complaint is merely being used as leverage to compel
them to name their clients and consequently to enable the PCGG to nail these
clients. Such being the case, respondent PCGG has no valid cause of action as against
petitioners and should exclude them from the Third Amended Complaint.
II

The nature of lawyer-client relationship is premised on the Roman Law concepts

of locatio conductio operarum (contract of lease of services) where one person lets his
services and another hires them without reference to the object of which the services
are to be performed, wherein lawyers' services may be compensated by honorarium or
for hire,[17] and mandato(contract of agency) wherein a friend on whom reliance could be
placed makes a contract in his name, but gives up all that he gained by the contract to
the person who requested him.[18]But the lawyer-client relationship is more than that of
the principal-agent and lessor-lessee.
In modern day perception of the lawyer-client relationship, an attorney is more than
a mere agent or servant, because he possesses special powers of trust and confidence
reposed on him by his client.[19] A lawyer is also as independent as the judge of the court,
thus his powers are entirely different from and superior to those of an ordinary
agent.[20] Moreover, an attorney also occupies what may be considered as a "quasi-
judicial office" since he is in fact an officer of the Court[21] and exercises his judgment in
the choice of courses of action to be taken favorable to his client.
Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct
and duties that breathe life into it, among those, the fiduciary duty to his client which is
of a very delicate, exacting and confidential character, requiring a very high degree of
fidelity and good faith,[22] that is required by reason of necessity and public
interest[23] based on the hypothesis that abstinence from seeking legal advice in a good
cause is an evil which is fatal to the administration of justice.[24]
It is also the strict sense of fidelity of a lawyer to his client that distinguishes him
from any other professional in society. This conception is entrenched and embodies
centuries of established and stable tradition.[25] In Stockton v. Ford,[26] the U.S. Supreme
Court held:
There are few of the business relations of life involving a higher trust and confidence
than that of attorney and client, or generally speaking, one more honorably and
faithfully discharged; few more anxiously guarded by the law, or governed by the
sterner principles of morality and justice; and it is the duty of the court to administer
them in a corresponding spirit, and to be watchful and industrious, to see that
confidence thus reposed shall not be used to the detriment or prejudice of the rights of
the party bestowing it.[27]

In our jurisdiction, this privilege takes off from the old Code of Civil Procedure
enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code
specifically forbids counsel, without authority of his client to reveal any communication
made by the client to him or his advice given thereon in the course of professional
employment.[28] Passed on into various provisions of the Rules of Court, the attorney-
client privilege, as currently worded provides:

Sec. 24. Disqualification by reason of privileged communication. - The following

persons cannot testify as to matters learned in confidence in the following cases:

xxx

An attorney cannot, without the consent of his client, be examined as to any

communication made by the client to him, or his advice given thereon in the course
of, or with a view to, professional employment, can an attorneys secretary,
stenographer, or clerk be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which has been acquired in such
capacity.[29]

Further, Rule 138 of the Rules of Court states:

Sec. 20. It is the duty of an attorney:

(e) to maintain inviolate the confidence, and at every peril to himself, to preserve the
secrets of his client, and to accept no compensation in connection with his clients
business except from him or with his knowledge and approval.

This duty is explicitly mandated in Canon 17 of the Code of Professional

Responsibility which provides that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of
the trust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to

client:
The lawyer owes "entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability," to the end that nothing be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or public popularity should restrain
him from the full discharge of his duty. In the judicial forum the client is entitled to
the benefit of any and every remedy and defense that is authorized by the law of the
land, and he may expect his lawyer to assert every such remedy or defense. But it is
steadfastly to be borne in mind that the great trust of the lawyer is to be performed
within and not without the bounds of the law. The office of attorney does not permit,
much less does it demand of him for any client, violation of law or any manner of
fraud or chicanery. He must obey his own conscience and not that of his client.

Considerations favoring confidentiality in lawyer-client relationships are many and

serve several constitutional and policy concerns. In the constitutional sphere, the
privilege gives flesh to one of the most sacrosanct rights available to the accused, the
right to counsel. If a client were made to choose between legal representation without
effective communication and disclosure and legal representation with all his secrets
revealed then he might be compelled, in some instances, to either opt to stay away from
the judicial system or to lose the right to counsel. If the price of disclosure is too high, or
if it amounts to self incrimination, then the flow of information would be curtailed thereby
rendering the right practically nugatory. The threat this represents against another
sacrosanct individual right, the right to be presumed innocent is at once self-evident.
Encouraging full disclosure to a lawyer by one seeking legal services opens the
door to a whole spectrum of legal options which would otherwise be circumscribed by
limited information engendered by a fear of disclosure. An effective lawyer-client
relationship is largely dependent upon the degree of confidence which exists between
lawyer and client which in turn requires a situation which encourages a dynamic and
fruitful exchange and flow of information. It necessarily follows that in order to attain
effective representation, the lawyer must invoke the privilege not as a matter of option
but as a matter of duty and professional responsibility.
The question now arises whether or not this duty may be asserted in refusing to
disclose the name of petitioners' client(s) in the case at bar. Under the facts and
circumstances obtaining in the instant case, the answer must be in the affirmative.
As a matter of public policy, a clients identity should not be shrouded in
mystery.[30] Under this premise, the general rule in our jurisdiction as well as in the United
States is that a lawyer may not invoke the privilege and refuse to divulge the name or
identity of his client.[31]
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose privileged information is
sought to be protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client relationship has
been established. The attorney-client privilege does not attach until there is a client.
 Third, the privilege generally pertains to the subject matter of the relationship.
Finally, due process considerations require that the opposing party should, as a
general rule, know his adversary. A party suing or sued is entitled to know who his
opponent is.[32] He cannot be obliged to grope in the dark against unknown forces. [33]
Notwithstanding these considerations, the general rule is however qualified by some
important exceptions.
1) Client identity is privileged where a strong probability exists that revealing the clients
name would implicate that client in the very activity for which he sought the lawyers
advice.
In Ex-Parte Enzor,[34] a state supreme court reversed a lower court order requiring a
lawyer to divulge the name of her client on the ground that the subject matter of the
relationship was so closely related to the issue of the clients identity that the privilege
actually attached to both. In Enzor, the unidentified client, an election official, informed
his attorney in confidence that he had been offered a bribe to violate election laws or
that he had accepted a bribe to that end. In her testimony, the attorney revealed that
she had advised her client to count the votes correctly, but averred that she could not
remember whether her client had been, in fact, bribed. The lawyer was cited for
contempt for her refusal to reveal his clients identity before a grand jury. Reversing the
lower courts contempt orders, the state supreme court held that under the
circumstances of the case, and under the exceptions described above, even the name
of the client was privileged.
U.S. v. Hodge and Zweig,[35] involved the same exception, i.e. that client identity is
privileged in those instances where a strong probability exists that the disclosure of the
client's identity would implicate the client in the very criminal activity for which the
lawyers legal advice was obtained.
The Hodge case involved federal grand jury proceedings inquiring into the activities
of the Sandino Gang, a gang involved in the illegal importation of drugs in the United
States. The respondents, law partners, represented key witnesses and suspects
including the leader of the gang, Joe Sandino.
In connection with a tax investigation in November of 1973, the IRS issued
summons to Hodge and Zweig, requiring them to produce documents and information
regarding payment received by Sandino on behalf of any other person, and vice
versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States
Court of Appeals, upholding non-disclosure under the facts and circumstances of the
case, held:
A clients identity and the nature of that clients fee arrangements may be privileged
where the person invoking the privilege can show that a strong probability exists that
disclosure of such information would implicate that client in the very criminal activity for
which legal advice was sought Baird v. Koerner, 279 F.2d at 680. While in Baird Owe
enunciated this rule as a matter of California law, the rule also reflects federal
law. Appellants contend that the Baird exception applies to this case.
 The Baird exception is entirely consonant with the principal policy behind the
attorney-client privilege. In order to promote freedom of consultation of legal advisors by
clients, the apprehension of compelled disclosure from the legal advisors must be
removed; hence, the law must prohibit such disclosure except on the clients consent. 8
J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the clients identity
and the nature of his fee arrangements are, in exceptional cases, protected as
confidential communications.[36]
2) Where disclosure would open the client to civil liability, his identity is privileged. For
instance, the peculiar facts and circumstances of Neugass v. Terminal Cab
Corporation,[37] prompted the New York Supreme Court to allow
a lawyers claim to the effect that he could not reveal the name of his client because
this would expose the latter to civil litigation.
In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was
riding, owned by respondent corporation, collided with a second taxicab, whose owner
was unknown. Plaintiff brought action both against defendant corporation and the owner
of the second cab, identified in the information only as John Doe. It turned out that when
the attorney of defendant corporation appeared on preliminary examination, the fact
was somehow revealed that the lawyer came to know the name of the owner of the
second cab when a man, a client of the insurance company, prior to the institution of
legal action, came to him and reported that he was involved in a car accident. It was
apparent under the circumstances that the man was the owner of the second cab. The
state supreme court held that the reports were clearly made to the lawyer in his
professional capacity. The court said:
That his employment came about through the fact that the insurance company had
hired him to defend its policyholders seems immaterial. The attorney in such cases is
clearly the attorney for the policyholder when the policyholder goes to him to report an
occurrence contemplating that it would be used in an action or claim against him.[38]
x x x xxx xxx.
All communications made by a client to his counsel, for the purpose of professional
advice or assistance, are privileged, whether they relate to a suit pending or
contemplated, or to any other matter proper for such advice or aid; x x x And whenever
the communication made, relates to a matter so connected with the employment as
attorney or counsel as to afford presumption that it was the ground of the address by
the client, then it is privileged from disclosure. xxx.
It appears... that the name and address of the owner of the second cab came to the
attorney in this case as a confidential communication. His client is not seeking to use
the courts, and his address cannot be disclosed on that theory, nor is the present action
pending against him as service of the summons on him has not been effected. The
objections on which the court reserved decision are sustained.[39]
In the case of Matter of Shawmut Mining Company,[40] the lawyer involved was
required by a lower court to disclose whether he represented certain clients in a certain
transaction. The purpose of the courts request was to determine whether the unnamed
persons as interested parties were connected with the purchase of properties involved
in the action. The lawyer refused and brought the question to the State Supreme
Court. Upholding the lawyers refusal to divulge the names of his clients the court held:
If it can compel the witness to state, as directed by the order appealed from, that he
represented certain persons in the purchase or sale of these mines, it has made
progress in establishing by such evidence their version of the litigation. As already
suggested, such testimony by the witness would compel him to disclose not only that he
was attorney for certain people, but that, as the result of communications made to him
in the course of such employment as such attorney, he knew that they were interested
in certain transactions. We feel sure that under such conditions no case has ever gone
to the length of compelling an attorney, at the instance of a hostile litigant, to disclose
not only his retainer, but the nature of the transactions to which it related, when such
information could be made the basis of a suit against his client.[41]
3) Where the governments lawyers have no case against an attorneys client unless,
by revealing the clients name, the said name would furnish the only link that would form
the chain of testimony necessary to convict an individual of a crime, the clients name is
privileged.
In Baird vs Korner,[42] a lawyer was consulted by the accountants and the lawyer of
certain undisclosed taxpayers regarding steps to be taken to place the undisclosed
taxpayers in a favorable position in case criminal charges were brought against them by
the U.S. Internal Revenue Service (IRS).
It appeared that the taxpayers returns of previous years were probably incorrect and
the taxes understated. The clients themselves were unsure about whether or not they
violated tax laws and sought advice from Baird on the hypothetical possibility that they
had. No investigation was then being undertaken by the IRS of the
taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of
$12,706.85, which had been previously assessed as the tax due, and another amount
of money representing his fee for the advice given. Baird then sent a check for
$12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but
without naming his clients. The IRS demanded that Baird identify the lawyers,
accountants, and other clients involved. Baird refused on the ground that he did not
know their names, and declined to name the attorney and accountants because this
constituted privileged communication. A petition was filed for the enforcement of the IRS
summons. For Bairds repeated refusal to name his clients he was found guilty of civil
contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to
reveal the names of clients who employed him to pay sums of money to the government
voluntarily in settlement of undetermined income taxes, unsued on, and with no
government audit or investigation into that clients income tax liability pending. The court
emphasized the exception that a clients name is privileged when so much has been
revealed concerning the legal services rendered that the disclosure of the clients
identity exposes him to possible investigation and sanction by government
agencies. The Court held:

The facts of the instant case bring it squarely within that exception to the general
rule. Here money was received by the government, paid by persons who thereby
admitted they had not paid a sufficient amount in income taxes some one or more
years in the past. The names of the clients are useful to the government for but one
purpose - to ascertain which taxpayers think they were delinquent, so that it may
check the records for that one year or several years. The voluntary nature of the
payment indicates a belief by the taxpayers that more taxes or interest or penalties are
due than the sum previously paid, if any.It indicates a feeling of guilt for nonpayment
of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link
that could form the chain of testimony necessary to convict an individual of a federal
crime. Certainly the payment and the feeling of guilt are the reasons the attorney here
involved was employed - to advise his clients what, under the circumstances, should
be done. [43]

Apart from these principal exceptions, there exist other situations which could
qualify as exceptions to the general rule.
For example, the content of any client communication to a lawyer lies within the
privilege if it is relevant to the subject matter of the legal problem on which the client
seeks legal assistance.[44] Moreover, where the nature of the attorney-client relationship
has been previously disclosed and it is the identity which is intended to be confidential,
the identity of the client has been held to be privileged, since such revelation would
otherwise result in disclosure of the entire transaction.[45]
Summarizing these exceptions, information relating to the identity of a client may fall
within the ambit of the privilege when the clients name itself has an independent
significance, such that disclosure would then reveal client confidences.[46]
The circumstances involving the engagement of lawyers in the case at bench,
therefore, clearly reveal that the instant case falls under at least two exceptions to the
general rule. First, disclosure of the alleged client's name would lead to establish said
client's connection with the very fact in issue of the case, which is privileged information,
because the privilege, as stated earlier, protects the subject matter or the substance
(without which there would be no attorney-client relationship).
The link between the alleged criminal offense and the legal advice or legal service
sought was duly established in the case at bar, by no less than the PCGG itself. The
key lies in the three specific conditions laid down by the PCGG which constitutes
petitioners ticket to non-prosecution should they accede thereto:

(a) the disclosure of the identity of its clients;

(b) submission of documents substantiating the lawyer-client relationship; and

(c) the submission of the deeds of assignment petitioners executed in favor of their
clients covering their respective shareholdings.
 From these conditions, particularly the third, we can readily deduce that the clients
indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and
corporate structure, framework and set-up of the corporations in question. In turn,
petitioners gave their professional advice in the form of, among others, the
aforementioned deeds of assignment covering their clients shareholdings.
There is no question that the preparation of the aforestated documents was part
and parcel of petitioners legal service to their clients. More important, it constituted an
integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that
identifying their clients would implicate them in the very activity for which legal advice
had been sought, i.e., the alleged accumulation of ill-gotten wealth in the
aforementioned corporations.
Furthermore, under the third main exception, revelation of the client's name would
obviously provide the necessary link for the prosecution to build its case, where none
otherwise exists. It is the link, in the words of Baird, that would inevitably form the chain
of testimony necessary to convict the (client) of a... crime."[47]
An important distinction must be made between a case where a client takes on the
services of an attorney for illicit purposes, seeking advice about how to go around the
law for the purpose of committing illegal activities and a case where a client thinks he
might have previously committed something illegal and consults his attorney about
it. The first case clearly does not fall within the privilege because the same cannot be
invoked for purposes illegal. The second case falls within the exception because
whether or not the act for which the advice turns out to be illegal, his name cannot be
used or disclosed if the disclosure leads to evidence, not yet in the hands of the
prosecution, which might lead to possible action against him.
These cases may be readily distinguished, because the privilege cannot be invoked
or used as a shield for an illegal act, as in the first example; while the prosecution may
not have a case against the client in the second example and cannot use the attorney
client relationship to build up a case against the latter. The reason for the first rule is
that it is not within the professional character of a lawyer to give advice on the
commission of a crime.[48] The reason for the second has been stated in the cases above
discussed and are founded on the same policy grounds for which the attorney-client
privilege, in general, exists.
In Matter of Shawmut Mining Co., supra, the appellate court therein stated that
"under such conditions no case has ever yet gone to the length of compelling an
attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the
nature of the transactions to which it related, when such information could be made the
basis of a suit against his client.[49]"Communications made to an attorney in the course
of any personal employment, relating to the subject thereof, and which may be
supposed to be drawn out in consequence of the relation in which the parties stand to
each other, are under the seal of confidence and entitled to protection as privileged
communications."[50] Where the communicated information, which clearly falls within the
privilege, would suggest possible criminal activity but there would be not much in the
information known to the prosecution which would sustain a charge except that
revealing the name of the client would open up other privileged information which would
substantiate the prosecutions suspicions, then the clients identity is so inextricably
linked to the subject matter itself that it falls within the protection. The Baird exception,
applicable to the instant case, is consonant with the principal policy behind the privilege,
i.e., that for the purpose of promoting freedom of consultation of legal advisors by
clients, apprehension of compelled disclosure from attorneys must be eliminated. This
exception has likewise been sustained in In re Grand Jury Proceedings[51] and Tillotson
v. Boughner.[52] What these cases unanimously seek to avoid is the exploitation of the
general rule in what may amount to a fishing expedition by the prosecution.
There are, after all, alternative sources of information available to the prosecutor
which do not depend on utilizing a defendant's counsel as a convenient and readily
available source of information in the building of a case against the latter. Compelling
disclosure of the client's name in circumstances such as the one which exists in the
case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and
litigants which we cannot and will not countenance. When the nature of the transaction
would be revealed by disclosure of an attorney's retainer, such retainer is obviously
protected by the privilege.[53] It follows that petitioner attorneys in the instant case owe
their client(s) a duty and an obligation not to disclose the latter's identity which in turn
requires them to invoke the privilege.
In fine, the crux of petitioners' objections ultimately hinges on their expectation that
if the prosecution has a case against their clients, the latter's case should be built upon
evidence painstakingly gathered by them from their own sources and not from
compelled testimony requiring them to reveal the name of their clients, information
which unavoidably reveals much about the nature of the transaction which may or may
not be illegal. The logical nexus between name and nature of transaction is so intimate
in this case that it would be difficult to simply dissociate one from the other. In this
sense, the name is as much "communication" as information revealed directly about the
transaction in question itself, a communication which is clearly and distinctly
privileged. A lawyer cannot reveal such communication without exposing himself to
charges of violating a principle which forms the bulwark of the entire attorney-client
relationship.
The uberrimei fidei relationship between a lawyer and his client therefore imposes a
strict liability for negligence on the former. The ethical duties owing to the client,
including confidentiality, loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions have been zealously
sustained. In Milbank, Tweed, Hadley and McCloy v. Boon,[54] the US Second District
Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its
client by helping the latter's former agent in closing a deal for the agent's benefit only
after its client hesitated in proceeding with the transaction, thus causing no harm to its
client. The Court instead ruled that breaches of a fiduciary relationship in any context
comprise a special breed of cases that often loosen normally stringent requirements of
causation and damages, and found in favor of the client.
To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley
P.A. v. Scheller[55] requiring strict obligation of lawyers vis-a-vis clients. In this case, a
contingent fee lawyer was fired shortly before the end of completion of his work, and
sought payment quantum meruit of work done. The court, however, found that the
lawyer was fired for cause after he sought to pressure his client into signing a new fee
agreement while settlement negotiations were at a critical stage. While the client found
a new lawyer during the interregnum, events forced the client to settle for less than what
was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients
in Meinhard v. Salmon[56] famously attributed to Justice Benjamin Cardozo that "Not
honesty alone, but the punctilio of an honor the most sensitive, is then the standard of
behavior," the US Court found that the lawyer involved was fired for cause, thus
deserved no attorney's fees at all.
The utmost zeal given by Courts to the protection of the lawyer-client confidentiality
privilege and lawyer's loyalty to his client is evident in the duration of the protection,
which exists not only during the relationship, but extends even after the termination of
the relationship.[57]
Such are the unrelenting duties required of lawyers vis-a-vis their clients because
the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell
Holmes,[58] "xxx is an exacting goddess, demanding of her votaries in intellectual and
moral discipline." The Court, no less, is not prepared to accept respondents position
without denigrating the noble profession that is lawyering, so extolled by Justice Holmes
in this wise:

Every calling is great when greatly pursued. But what other gives such scope to
realize the spontaneous energy of one's soul? In what other does one plunge so deep in
the stream of life - so share its passions its battles, its despair, its triumphs, both as
witness and actor? x x x But that is not all. What a subject is this in which we are
united - this abstraction called the Law, wherein as in a magic mirror, we see
reflected, not only in our lives, but the lives of all men that have been. When I think
on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress,
we who are here know that she is a mistress only to be won with sustained and lonely
passion - only to be won by straining all the faculties by which man is likened to God.

We have no choice but to uphold petitioners' right not to reveal the identity of their
clients under pain of the breach of fiduciary duty owing to their clients, because the facts
of the instant case clearly fall within recognized exceptions to the rule that the clients
name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client confidential privilege
under the circumstances obtaining here does not cover the identity of the client, then it
would expose the lawyers themselves to possible litigation by their clients in view of the
strict fiduciary responsibility imposed on them in the exercise of their duties.
The complaint in Civil Case No. 0033 alleged that the defendants therein, including
herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up
through the use of coconut levy funds the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM and others and that through
insidious means and machinations, ACCRA, using its wholly-owned investment arm,
ACCRA Investments Corporation, became the holder of approximately fifteen million
shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March
1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco
is their client and it was Cojuangco who furnished all the monies to the subscription
payment; hence, petitioners acted as dummies, nominees and/or agents by allowing
themselves, among others, to be used as instrument in accumulating ill-gotten wealth
through government concessions, etc., which acts constitute gross abuse of official
position and authority, flagrant breach of public trust, unjust enrichment, violation of the
Constitution and laws of the Republic of the Philippines.
By compelling petitioners, not only to reveal the identity of their clients, but worse, to
submit to the PCGG documents substantiating the client-lawyer relationship, as well as
deeds of assignment petitioners executed in favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a link that would inevitably form
the chain of testimony necessary to convict the (client) of a crime.
III

In response to petitioners' last assignment of error, respondents allege that the

private respondent was dropped as party defendant not only because of his admission
that he acted merely as a nominee but also because of his undertaking to testify to such
facts and circumstances "as the interest of truth may require, which includes... the
identity of the principal."[59]
First, as to the bare statement that private respondent merely acted as a lawyer and
nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient
to state that petitioners have likewise made the same claim not merely out-of- court but
also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel,
claiming that their acts were made in furtherance of "legitimate lawyering. [60] Being
"similarly situated" in this regard, public respondents must show that there exist other
conditions and circumstances which would warrant their treating the private respondent
differently from petitioners in the case at bench in order to evade a violation of the equal
protection clause of the Constitution.
To this end, public respondents contend that the primary consideration behind their
decision to sustain the PCGG's dropping of private respondent as a defendant was his
promise to disclose the identities of the clients in question. However, respondents failed
to show - and absolutely nothing exists in the records of the case at bar - that
private respondent actually revealed the identity of his client(s) to the PCGG. Since the
undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco
and the PCGG, an undertaking which is so material as to have justified PCGG's special
treatment exempting the private respondent from prosecution, respondent
Sandiganbayan should have required proof of the undertaking more substantial than a
"bare assertion" that private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG, only three documents were
submitted for the purpose, two of which were mere requests for re-investigation and one
simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves
willing to reveal. These were clients to whom both petitioners and private respondent
rendered legal services while all of them were partners at ACCRA, and were not the
clients which the PCGG wanted disclosed for the alleged questioned transactions. [61]
To justify the dropping of the private respondent from the case or the filing of the
suit in the respondent court without him, therefore, the PCGG should conclusively show
that Mr. Roco was treated as a species apart from the rest of the ACCRA lawyers on
the basis of a classification which made substantial distinctions based on real
differences. No such substantial distinctions exist from the records of the case at bench,
in violation of the equal protection clause.
The equal protection clause is a guarantee which provides a wall of protection
against uneven application of statutes and regulations. In the broader sense, the
guarantee operates against uneven application of legal norms so that all persons under
similar circumstances would be accorded the same treatment.[62] Those who fall within a
particular class ought to be treated alike not only as to privileges granted but also as to
the liabilities imposed.

x x x. What is required under this constitutional guarantee is the uniform operation of

legal norms so that all persons under similar circumstances would be accorded the
same treatment both in the privileges conferred and the liabilities imposed. As was
noted in a recent decision: Favoritism and undue preference cannot be allowed. For
the principle is that equal protection and security shall be given to every person under
circumstances, which if not identical are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding the rest. [63]

We find that the condition precedent required by the respondent PCGG of the
petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the
lawyer-client confidentiality privilege. The condition also constitutes a transgression by
respondents Sandiganbayan and PCGG of the equal protection clause of the
Constitution.[64] It is grossly unfair to exempt one similarly situated litigant from
prosecution without allowing the same exemption to the others. Moreover, the PCGGs
demand not only touches upon the question of the identity of their clients but also on
documents related to the suspected transactions, not only in violation of the attorney-
client privilege but also of the constitutional right against self-incrimination.Whichever
way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.
An argument is advanced that the invocation by petitioners of the privilege of
attorney-client confidentiality at this stage of the proceedings is premature and that they
should wait until they are called to testify and examine as witnesses as to matters
learned in confidence before they can raise their objections. But petitioners are not
mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten
wealth. They have made their position clear from the very beginning that they are not
willing to testify and they cannot be compelled to testify in view of their constitutional
right against self-incrimination and of their fundamental legal right to maintain inviolate
the privilege of attorney-client confidentiality.
 It is clear then that the case against petitioners should never be allowed to take its
full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of
further litigation when it is obvious that their inclusion in the complaint arose from a
privileged attorney-client relationship and as a means of coercing them to disclose the
identities of their clients.To allow the case to continue with respect to them when this
Court could nip the problem in the bud at this early opportunity would be to sanction an
unjust situation which we should not here countenance. The case hangs as a real and
palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not
be allowed to continue a day longer.
While we are aware of respondent PCGGs legal mandate to recover ill-gotten
wealth, we will not sanction acts which violate the equal protection guarantee and the
right against self-incrimination and subvert the lawyer-client confidentiality privilege.
WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent
Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are
hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to
exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G.
Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the
Philippines v. Eduardo Cojuangco, Jr., et al.".
SO ORDERED.
Bellosillo, Melo, and Francisco, JJ., concur.
Vitug, J., see separate opinion.
Padilla, Panganiban, and Torres, Jr., JJ., concur in the result.
Davide, Jr. and Puno, JJ., see dissenting opinion.
Narvasa, C.J., and Regalado, J., joins Justice Davide in his dissent.
Romero, J., no part. Related to PCGG Commissioner when Civil Case No. 0033
was filed.
Hermosisima, Jr., J., no part. Participated in Sandiganbayan deliberations thereon.
Mendoza, J., on leave.

G.R. No. L-1800 January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.

FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of
the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel
the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for redress to grievances on the
groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after
mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947,
without prejudice to writing later an extended and reasoned decision.

The right of freedom of speech and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
Constitutions of democratic countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing
their legislative bodies, called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of
the City of Manila, which according to section 2439 of the Administrative Code is the legislative body
of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays,
disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks,
cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to
enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."

Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844
and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace,
and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any
public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with
other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation
engaged in any lawful assembly." And section 1119 provides the following:

"SEC. 1119 Free for use of public The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or exercise during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."
As there is no express and separate provision in the Revised Ordinance of the City regulating the
holding of public meeting or assembly at any street or public places, the provisions of saif section
1119 regarding the holding of any parade or procession in any street or public paces may be applied
by analogy to meeting and assembly in any street or public places.

Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is
vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places of the City of
Manila; and the other is that the applicant has the right to a permit which shall be granted by the
Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with the view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is construe the provisions of the said ordinance to mean that it does not confer
upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the
meeting may be held.

Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that
"no parade or procession upon any ground abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the select men of the town or from licensing committee,"
was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of the
United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the
State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade
or procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as
the statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration, the time, place, and manner of the parade and procession,
with a view to conserving the public convenience and of affording an opportunity to provide proper
policing and are not invested with arbitrary discretion to issue or refuse license, ... ."

We can not adopt the alternative construction or constru the ordinance under consideration as
conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount
to authorizing him to prohibit the use of the streets and other public places for holding of meetings,
parades or processions, because such a construction would make the ordinance invalid and void or
violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the
use of streets, parks, and the other public places, and the word "regulate," as used in section 2444
of the Revised Administrative Code, means and includes the power to control, to govern, and to
restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong
Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it
does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are
executive and one of them is "to comply with and enforce and give the necessary orders for the
faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised
Administrative Code), the ligislative police power of the Municipal Board to enact ordinances
regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets
and other public places, can not be delgated to the Mayor or any other officer by conferring upon him
unregulated discretion or without laying down rules to guide and control his action by which its
impartial execution can be secured or partiality and oppression prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under
Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public
streets, the council has no power to ordain that no processions shall be allowed upon the streets
until a permit shall be obtained from the superintendent of police, leaving the issuance of such
permits to his discretion, since the powers conferred on the council cannot be delegated by them.

The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104,
held the following:

"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also,
in substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under it,
when there was nothing in the ordinance to guide or cintrol his action, and it was held void
because "it lays down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other
improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a legal discretion, to be
exercised within the limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a petty tyrant."

In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons,
or associations or organizations shall march, parade, ride or drive, in ou upon or through the public
streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held by the Supreme Court
of Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held:

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it
is not plainly unconstitutional, as only conferring such power over the subjects referred to as
will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under the constitution than under the
common law."

"It is quite possible that some things have a greater tendency to produce danger and
disorder in cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogther can be granted at all. . . . ."

"It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day or
reasonable hours at night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social demonstrations are resorted to for
the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce
 some effect on the public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in furthering them. ... When
people assemble in riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors become punishable. . . ."

"It is only when political, religious, social, or other demonstrations create public disturbances,
or operate as a nuisance, or create or manifestly threaten some tangible public or private
mischief, that the law interferes."

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."

In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance
which made it unlawful for any person, society or club, or association of any kind, to parade any of
the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The appellants were members of
the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding
the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on
official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble
and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights
of a free people. The spirit of our free institutions allows great latitude in public parades and
emonstrations whether religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes in politics or religion,
and permit like parades of those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions
violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of
city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation.
The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of
Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg,
which provides: "That it shall be unlawful for any person or persons or association to use the street
of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining
a permit from the Chief of Police of the City of Walsenburg so to do," held the following:

"[1] The power of municipalities, under our state law, to regulate the use of public streets is
conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of
the United States to use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the general, be abridged or
denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S.
Ct., 954, 964; 83 Law, ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S.
Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The
authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good order
 upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all,
it cannot be disregarded by the attempted excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
excercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451;58
S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of the municipal corporation to say who
shall, who shall not, be accorded the privilege of parading on its public streets. No standard
of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief
of police may for any reason which he may entertain arbitrarily deny this privelege to any
group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

"In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."

The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U.
S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of
a permit for a public assembly in or upon the public streets, highways, public parks, or public
buildings of the city and authorizing the director of public safety, for the purpose of preventing riots,
disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the
facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a
permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of
the conclusion said:

". . . Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the
 record discloses, be made the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides
that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes,
cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by the Municipal Board
requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of
the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent
from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in
constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of streets
and other public places has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that
the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same
power, specially if we take into account that its exercise may be in conflict with the exercise of the
same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred,
upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from
ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such
grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other
public places for processions, parades, or meetings, would be null and void, for the same reasons
stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra,
wherein the question involved was also the validity of a similar statute of New Hamsphire. Because
the same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer are
applicable to a law or statute that confers unlimited power to any officer either of the municipal or
state governments. Under our democratic system of government no such unlimited power may be
validly granted to any officer of the government, except perhaps in cases of national emergency. As
stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is
a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a petty tyrant."

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code
apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but
evidently the quotation of said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered.
The popular meeting or assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power
to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have
the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor
by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the
doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist
Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite
rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."
The reason alleged by the respondent in his defense for refusing the permit is, "that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that passions,
specially on the part of the losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the
refusal of the permit can not be given any consideration. As stated in the portion of the decision in
Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience
in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse
the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable
objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.

Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions

PARAS, J., concurring:

The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4,
amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has
discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil.,
255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said:

"It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and
snare and the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor."

The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the
House of Representatives; he was the chief campaigner of the said party in the last elections. As the
petition comes from a responsible party, in contrast to Evangelista's Communist Party which was
considered subversive, I believe that the fear which caused the Mayor to deny it was not well
founded and his action was accordingly far from being a sound exercise of his discretion.

BRIONES, M., conforme:

En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias,
director general de campaa de las minorias coaligadas en las ultimas elecciones y "Floor Leader"
de dichas minorias en la Camara de Representantes, solicito del Alcalde de Manila en comunicacion
de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin publico en la Plaza Miranda el
Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00 a.m., a fin de pedir al gobierno
el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para usar la
plataforma ya levantada en dicha Plaza.

El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para
la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de que no se
pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera responsable del
mantenimiento de la paz y orden durante la celebracion del mitin."

Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el permiso
concedido, expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep.
Primicias.

"Sirvase dar por informado dice el Alcalde Fugoso en su carta que despues de haber
leido los periodicos metropolitanos da esta maana en que aparece que vuestro mitin va a
ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes
electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la
presente se revoca dicho permiso.
 "Se cree aade el Alcalde que la paz y el orden en Manila sufriran dao en dicho 'rally'
considerando que las pasiones todavia no se han calmado y la tension sigue alta como
resultado de la ultima contienda politica.

"Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las

universidades locales participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar
disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la
oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes
matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una
vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines
del mitin tal como han sido anunciados en los periodicos mencionados.

"Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para
este proceder toda vez que los resultados todavia no han sido oficialmente anunciados.

"Por tanto termina el Alcalde su orden revocatoria la accion de esta oficina se toma en
interes del orden publico y para prevenir la perturbacion de la paz en Manila."

De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida
inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador General para
que investigue la fase criminal del caso y formule la accion que justifiquen las circunstancias.

Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los
abogados de ambas partes ante esta Corte en sus informes orales.1

El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la

Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la libertad
de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y dirigir petiticiones
al gobierno para remedio de sus agravios." Con respecto al posible aspecto criminal del caso se
invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena de prision
correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin
fundamento legal, prohibiere o interrumpiere una reunion pacifica, o disolviere la misma."

La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como
guardian legal de las plazas, calles y demas lugares publicos. Se alega que como Alcalde de la
Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la Plaza Miranda, que
es una plaza publica, para la celebracion de un mitin o reunion, de conformidad con las exigencias
del interes general tal como el las interpreta. Especificamente se citan dos disposiciones, a saber: el
articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de
la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo
aludido del Codigo Administrativo Revisado se lee como sigue:

xxx xxx xxx

"(m) To grant and refuse municipal license or permits of all classes and to revoke the same
for violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinance are being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted is carried on, or for
any other good reason of general interest." La ordenanza municipal indicada reza lo
siguiente:

La ordenanza municipal indicada reza lo siguiente:

 "SEC. 1119. Free for use of public. The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by the
ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises
during the celebration of national holidays in any streets or public places of the city and on
the patron saint day of any district in question, may be permitted by means of a permit issued
by the Mayor, who shall determine the streets or public places, or portions thereof, where
such athletic games, sports, or exercises may be held: And provided, further, That the
holding of any parade or procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor, who shall, on every occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."

Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el
Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la peticion del
recurrente ni en ningun documenmento o manifestacion verbal atribuida al mismo, sino solamente
en las columnas informativas de la prensa metropolitana. El recurrente admite, sin embargo, que el
objeto del mitin era comunicar al pueblo la infinidad de telegramas y comunicaciones que como jefe
de campaa de las oposiciones habia recibido de varias partes del archipielago denunciando
tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc.,
ocurridos en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales
anomalias y abusos; y pedir su pronta, eficaz y honrada intervencion para evitar lo que todavia se
podia evitar, y con relacion a los hechos consumados urgir la pronta persecucion y castigo
inmediato de los culpables y malhechores. De esto resulta evidente que el objeto del mitin era
completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el recurrente y
los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para
derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En
realidad, teniendo en cuenta las serias responsabilidades del recurrente como jefe de campaa
electoral de las minorias aliadas y como "Floor Leader" en el Congreso de dichas minorias, parecia
que esta consideracion debia pesar decisivamente en favor de la presuncion de que el mitin seria
una asamblea pacifica, de ciudadanos conscientes, responsables y amantes de la ley y del orden.2

Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas
Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino solo la procesion o
parada por las calles. Esto demuestra, se sostiene, que cuando se trata de un mitin en una plaza o
lugar publico, la concesion del permiso es ineludible y el Alcalde no tiene ninguna facultad
discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo. Creo no debe
haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de
conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin
en una plaza publica en un dia y una hora determinados cuando ya previamente se ha concedido de
buena fe el uso del mismo lugar a otro a la misma hora. La prevencion de esta clase de conflictos
es precisamente uno de los ingredientes que entran en la motivacion de la facultad reguladora del
Estado o del municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo,
es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el movimiento
general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y
conveniencia publica son por lo regular la base, el leit-motif de toda ley u ordenanza encaminada a
reglamentar el uso de parques, plazas y calles. Desde luego que la regla no excluye la
consideracion a veces de la paz y del buen orden, pero mas adelante veremos que este ultimo, para
que sea atendible, requiere que exista una situacion de peligro verdadero, positivo, real, claro,
inminente y substancial. La simple conjetura, la mera aprension, el temor mas o menos exagerado
de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es
motivo bastante para denegar el permiso, pues el derecho constitucional de reunirse pacificamente,
ya para que los ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento
sobre ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos
agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los parques,
plazas y calles.

La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla. Tenia
razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos
de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre todo, bajo el precepto
categorico, terminante, expresado en el inciso 8, seccion 1, del Articulo III de la Constitucion? No
constituye la denegacion del permiso una seria conculcacion de ciertos privilegios fundamentales
garantizados por la Constitucion al ciudadano y al pueblo?

Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "all-
pervading power of the state to regulate," temiendo que el mitin solicitado iba a poner en peligro la
paz y el orden publico en Manila. No se fundo la denegacion en razones de "comfort" o
conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un conflicto con otro mitin ya
previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o aprension
la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto
reida y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y
provocar serios desordenes. La cuestion en orden es la siguiente: se puede anular o siquiera
poner en suspenso el derecho fundamentalisimo de reunion o asamblea pacifica, garantizado por la
Constitucion, por razon de esta clase de conjetura, temor o aprension? Es obvio que la contestacion
tiene que ser decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria
practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias
constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales privilegios y
garantias hubiera de depender de las suspicacias, temores, aprensiones, o hasta humor del
gobernante, uno podria facilmente imaginar los resultados desastrosos de semejante proposicion;
un partido mayoritario dirigido por caudillos y liders sin escrupulos y sin conciencia podria facilmente
anular todas las libertades, atropellar todos los derechos incluso los mas sagrados, ahogar todo
movimiento legitimo de protesta o peticion, estrangular, en una palabra, a las minorias, las cuales
como sabe todo estudiante de ciencia politica en el juego y equilibrio de fuerzas que integran el
sistema democratico son tan indispensables como las mayorias. Que es lo que todavia podria
detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada
desagradable de sus adversarios si se le dejara abiertas las puertas para que, invocando probables
peligros o amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o
poner en suspenso los privilegios y garantias constitucionales? No seria esto retornar a los dias de
aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico de uno de los
Estados del Sur de America que asombro al resto de su pais con este nefasto pronunciamiento: "I
am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el llamado
poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho,
privilegio o garantia constitucional. Sin embargo, tal seria el resultado si en nombre de un concepto
tan vago y tan elastico como es el "interes general" se permitiera in terdecir la libertad de la palabra,
de la cual los derechos de reunion y de peticion son nada mas que complemento logico y necesario.
Una mujer famosa de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y
colocar su hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion:
"Libertad, cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso
legitimando la accion del recurrido y consiguientemente autorizando la supresion de los mitines so
pretexto de que la paz y el orden publico corren peligro con ellos, un desengaado de la democracia
en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica
exclamacion de la siguiente manera: "Interes general, paz, orden publico, cuantos atentados se
cometen en vuestro nombre contra la libertad!"
El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas,
particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y
calles para el intercambio de impresiones y puntos de vista sobre cuestiones nacionales si bien es
absoluto es tambien relativo en el sentido de que se puede regular, pero jamas se puede denegar o
coartar so pretexto o a guisa de regulacion (Hague vs. Committee for Industrial Organization, 307 U.
S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a ser clasico en la
jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable
asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa
abreviatura CIO, planteo una queja ante los tribunales de New Jersey contra las autoridades de
Jersey City, (a) atacando, por fundamentos constitucionales, la validez de una ordenanza municipal
que regulaba y restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y
medios en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades.

Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y
asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la
"National Labor Relations Act." Las autoridades de la ciudad, comenzando por el Alcalde Hague el
famoso cabecilla de la muy notoria maquina politica de New Jersey, rehusaron consistentemente
conceder licencia para dichos mitines bajo la especiosa alegacion de que los miembros de la
organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave
perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la
licencia se fundaba en una ordenanza municipal que trataba de reglamentar el derecho
constitucional de reunion y asamblea pacifica.

Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los

metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole
celebrar los mitines solicitados. Elevado el asunto en casacion e la Corte Suprema Federal, esta
confirmo la sentencia con solo una ligera modificacion. Entre otros pronunciamientos se dijo que: (a)
donde quiera este alojado el titulo sobre las calles, parques y plazas, desde tiempo inmemorial los
mismos siempre se han considerado como un fideicomiso para uso del publico, y desde tiempos
remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio
de impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los
asuntos publicos; (b) que el uso de las calles y plazas publicas para tales fines ha sido siempre,
desde la antiguedad, una parte importante y esencial de los privilegios, inmunidades, derechos y
libertades de los ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las
calles, plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones
nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe
ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el
buen orden; pero no puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el
tribunal inferior estuvo acertado al declarar invalida la ordenanza en su faz, pues no hace del
"comfort" o conveniencia en el uso de calles y plazas la norma y patron de la accion official; por el
contrario, faculta al Director de Seguridad a rehusar el permiso en virtud de su simple opinion de
que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y desordenadas; (e)
que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como
instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos
nacionales, pues la prohibicion de hablar producira indudablemente tal efecto: (f) y, por ultimo, que
no puede echarse mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de
mantener el orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo
literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede
hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el
orden en relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina:

"5. Regulation of parks and streets. "Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
 been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of the citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not in the guise of regulation be abridged
or denied. We think the court below was right in holding the ordinance . . . void upon its face.
It does not make comfort or convenience in the use of streets or parks the standard of official
action. It enables the Director of Safety to refuse a permit on his mere opinion that such
refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free expression of views on
national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities.
But uncontrolled official suppression of the privilege cannot be made a substitute for the duty
to maintain order in connection with the exercise of the right." (Hague vs. Committee for
Industrial Organization, 307 U. S. 496, 515-516.)

Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra
Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde recurrido. Pero
la similitud es solo en el hecho de que el entonces Alcalde D. Tomas Earnshaw tambien revoco el
permiso previamente concedido al partido comunista que representaba Crisanto Evangelista para
celebrar mitines en Manila, pero las circunstancias en ambos casos son enteramente diferentes. El
Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se habian
encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido
comunista se preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano
en Filipinas gobierno que ellos calificaban de imperialista y capitalistico sino que de hecho en
mitines celebrados con anterioridad los comunistas habian pronunciado discursos clara y
positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para liberar,
segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La accion, por tanto,
del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en
la existencia de un peligro inminente, claro, real, sustantivo ingrediente unico y excepcionalisimo
que permite una salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales
de que se trata.

Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho
la mas pequea insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la
celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por metodos y
procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio francamente la
legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que esas minorias
coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para
todos los cargos nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en
21 provincias de las 50 que componen el mapa electoral, y en 5 ciudades con carta especial de las
8 que existen, incluyendose entre dichas 5 la de Manila, capital del archipielago.

Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el
caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como
el instrumento normal y democratico para cambiar los gobiernos y las administraciones, lo
demuestra, ademas del hecho ya apuntado de que lucho en las ultimas elecciones prevaliendose de
las armas proveidas por la legalidad y sacando partido de los medios de que disponia frente a la
natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues
de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se
habia escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante
engaos, abusos y anomalias de diferentes clases, no busco la violencia ni recurrio a la accion
directa para hallar remedio a sus agravios o vengarlos, sino que trato de cobijarse bajo la
Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus
quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente,
con todas las rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia
representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos el recurrente
en este caso, cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de
las minorias en el Congreso y jefe de campaa de las mismas en las pasadas elecciones. Que
mejor prueba de legalidad y de propositos pacificos y ordenados?

Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el
camino angosto de la represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado,
la amplia avenida de la libertad, una politica que consista en abrir espitas y valvulas por donde
pueda extravasarse no ya la protesta sino inclusive la indignacion del pueblo, previniendo de esta
manera que los vapores mal reprimidos hagan estallar la caldera, o que la desesperacion lo arrastre
a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil. Creo que
entre ambas politicas la eleccion no es dudosa.

Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia
concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en diferentes
sitios de Manila; que en dichos mitines se habian pronunciado discursos altamente inflamatorios y
calumniosos llamandose ladrones y chanchulleros a varios funcionarios del gobierno nacional y de
la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del Senado y el mismo
recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la
acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del
bienestar e interes generales; que, dado este antecedente, habia motivo razonable para creer que
semejantes discursos se pronunciarian de nuevo, minandose de tal manera la fe y la confianza del
pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias perturbaciones,
teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo de parte de los grupos
perdidosos y derrotados.

Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un
regimen de previa censura, el cual no solo es extrao sino que es enteramente repulsivo e
incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion, es de
represion y castigo sobre la base de los hechos consumados. En otras palabras, es un sistema que
permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta al que abusase de
ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia, la
difamacion oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto
de Hague vs. Committee for Industrial Organization, la supresion incontrolada del privilegio
constitucional no puede utilizarse como sustituto de la operacion de dichas leyes.

Se temia dice el recurrido en su contestacion que la probable virulencia de los discursos y la

fuerte tension de los animos pudiesen alterar seriamente la paz y el orden publico. Pero cabe
preguntar de cuando aca la libertad, la democracia no ha sido un peligro, y un peligro perpetuo?
En realidad, de todas las formas de gobierno la democracia no solo es la mas dificil y compleja, sino
que es la mas peligrosa. Rizal tiene en uno de sus libros inmortales una hermosa imagen que es
perfectamente aplicable a la democracia. Puede decirse que esta es como la mar: serena, inmovil,
sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero cuando
sopla el huracan lease, Vientos de la Libertad sus aguas se alborotan, sus olas se encrespan,
y entonces resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se
desencadenan liberrimamente.
Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y
enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con
todos sus inconvenientes, con todos sus peligros. Los que temen la libertad no merecen vivirla. La
democracia no es para pusilanimes. Menos cuando de la pusilanimidad se hace pretexto para
imponer un regimen de fuerza fundado en el miedo. Porque entonces el absolutismo se disfraza
bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe como terminaron.

El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y
previno el temor a ellos con las luminosas observaciones que se transcriben a continuacion,
expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440 (1907), a saber:

"Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para
protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos
siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el
resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los
directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal
agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una
multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y
tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion
de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas
propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas
severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los
representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden
debe averiguarse quienes son los culpables y castigarseles por este motivo, pero debe
procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la
sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso."

En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los
discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la oposicion
antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa. Como se dice
mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra decision en el
presente asunto tampoco ocurrio nada. Que demuestra esto? Que los temores eran exagerados,
por no llamarlos fantasticos; que el pueblo de Manila, con su cordura, tolerancia y amplitud de
criterio, probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes.

La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las

garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes el de
reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el corazon y alma
de nuestro pueblo para ser tratados negligentemente, con un simple encogimiento de hombros.
Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas contra la opresion
y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores
del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio,
generando luego el famoso Grito de Balintawak. Fueron esas libertades las que despues informaron
los documentos politicos de Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de
medio siglo de colaboracion filipino americana, fueron esas mismas libertades la esencia de
nuestras instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui
establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los atinados y
elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra
Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a
continuacion:
"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la
palabra, tal y como la han defendido siempre todos los paises democraticos, era
desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa
de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de Cien Aos' (paginas 62 y
siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos, dijo:

"El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la
prensa libre en Filipinas, y por crear diputados filipinos.

"Los patriotas filipinos que estaban en Espaa, por medio de las columnas de La Solidaridad
y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la
'libertad de prensa, de cultos y de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La
Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos,
garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y
de peticion.

"Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una
reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe
ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el
derecho a la libertad.

"Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de

los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la
libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto,
no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del
Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de
1900, que sientan el siguiente inviolable principio:

"Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los
derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para
remedio de sus agravios."

"El Bill de Filipinas, o sea la Ley del Congreso de 1. de Julio de 1902, y la Ley Jones, o sea
la Ley del Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de
las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son
extraas para los estudiantes de derecho constitucional, porque estan calcadas de la
Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio
antes de otorgar su aprobacion a la Constitucion.

"Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe
olvidarse por un solo instante, de que las mencionadas garantias constituyen parte
integrante de la Ley Organica La Constitucion de las Islas Filipinas.

"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera
palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de
aplicacion a los grandes casos constitucionales de Inglaterra y America. (Kepner vs. U. S.
[1904], 195 U. S., 100; Serra vs. Mortiga [1917], 214 U. S., 470.) Y cuales son estos
principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre
aquellos estan los siguientes:

"Los intereses de la sociedad y la conservacion de un buen gobierno requieren una

discusion plena de los asuntos publicos. Completa libertad de comentar los actos de los
 funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra.
La penetrante incision de la tinta libra a la burocracia del absceso. Los hombres que se
dedican a la vida publica podran ser victimas de una acusacion injusta y hostil; pero podra
calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario
publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos
oficiales. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos.
Desde luego que la critica no debe autorizar la difamacion. Con todo, como el individuo es
menos que el Estado, debe esperarse que sobrelleve la critica en beneficio de la
comunidad. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios,
que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial que cualesquiera o sobre
todas las dependencias del Gobierno la opinion publica debe ser el constante manantial
de la libertad y de la democracia. (Veanse los casos perfectamente estudiados de Wason
vs. Walter, L. R. 4 Q. B., 73, Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R.
Carden, 5 Q. B. D., 1.)

Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa
que la antigua colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario,
tiene que ser muchisimo mas activa y militante. Obrar de otra manera seria como borrar de una
plumada nuestras mas preciosas conquistas en las jornadas mas brillantes de nuestra historia.
Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del Pilar, Bonifacio, Mabini,
Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe
catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos
sacrificios ha costado a nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de
opera bufa, al amparo de caciquillos y despotillas que pondrian en ridiculo el pais ante el mundo . . .
Es evidente que no hemos llegado a estas alturas, en la trabajosa ascension hacia la cumbre de
nuestros destinos, para permitir que ocurra esa tragedia.

No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la
coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del
pueblo el propio y correspondiente remedio. Pudieran ser reales o pudieran ser imaginarios, en todo
o en parte. Pero de una cosa estamos absolutamente seguros y es que la democracia no puede
sobrevivir a menos que este fundada sobre la base de un sufragio efectivo, sincero, libre, limpio y
ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte de la democracia. Suprimid
eso, y la democracia resulta una farsa.

Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido, sino que
debe ser alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no
hay mejor higiene que la critica libre, la censura desembarazada. Solamente se pueden corregir los
abusos permitiendo que se denuncien publicamente sin trabas sin miedo.5 Esta es la mejor manera
de asegurar el imperio de la ley por encima de la violencia.

HILADO, J., dissenting:

Because the constitutional right of assembly and petition for redress of grievances has been here
invoked on behalf of petitioner, it has been considered doubly necessary to expound at length the
grounds of my dissent. We are all ardent advocates of this right, whenever and wherever properly
exercisable. But, in considering the legal problem here presented serenely and dispassionately, as I
had to, I arrived at a different conclusion from that of the majority.
(a) Right not absolute but subject to regulation. It should be recognized that this right is not
absolute and is subject to reasonable regulations. (Philippine Constitutional Law by Malcolm and
Laurel, 3d ed., p. 407; Commonwealth vs. Abrahams, 156 Mass., 57, 30 N.E. 79.)

Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one.
Assemblies are subject to reasonable regulations."

In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on
page 407 of the above cited work on Philippine Constitutional Law by Malcolm and Laurel, the
Supreme Judicial Court of Massachusetts considered and decided a case involving a regulation by
the Board of Park Commissioners forbidding all persons "to make orations, harangues, or loud
outcries" in a certain park, under penalty of $20, except upon prior consent of the board. The
defendant requested permission to deliver an oration in the park, which was refused by the board,
and thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes
in length. In a criminal trial of said defendant for violating the rules promulgated by the Board of Park
Commissioners, said rules were held valid and reasonable, and not inconsistent with article 19 of the
Bill of Rights (of the Massachusetts Constitution), providing that "the people have a right, in an
orderly and peaceable manner, to assemble to consult upon the common good, give instructions to
their representatives, and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that case
the defendant admitted that the people would not have the right to assemble for the purposes
specified in the public streets, and might not have such right in the public gardens or on the
common, because such an assembly would or might be inconsistent with the public use for which
these places are held. And the Supreme Court of Massachusetts said:

". . . . The same reasons apply to any particular park. The parks of Boston are designed for
the use of the public generally; and whether the use of any park or a part of any park can be
temporarily set aside for the use of any portion of the public, is for the park commissioners to
decide, in the exercise of a wise discretion."

In the above-quoted case it appears from the statement of facts preceding the opinion that within the
limits of Franklin Park, there involved, were large areas not devoted to any special purpose and not
having any shrubbery that would be injured by the gathering thereon of a large concourse of people;
that defendant's speech contained nothing inflammatory or seditious, and was delivered in an
ordinary oratorical tone; that at the close of the oration the audience quietly dispersed; and that no
injury of any kind was done to the park. Still, it was held that the regulation under which the Board of
Park Commissioners denied the permission to deliver said oration requested by the defendant was
valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to
the people the "right, in an orderly and peaceable manner, to assemble to consult upon the common
good, give instructions to their representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances
they suffer."

In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse
municipal . . . permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad.
Code, section 2434 [b]-[m]; italics ours); and "to comply with and enforce and give the necessary
orders for the faithful enforcement and execution of the laws and ordinances in effect within the
jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general powers and duties of the
Municipal Board, whose ordinances the said Mayor was at once bound and empowered to comply
with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places."
[Ibid., section 2444 (u); italics ours.]
Another legal doctrine which should not be lost sight of is that, without abridging the right of
assembly and petition, the government may regulate the use of places public places wholly
within its control, and that the state or municipality may require a permit for public gatherings in
public parks and that, while people have the right to assemble peaceably on the highways and to
parade on streets, nevertheless the state may regulate the use of the streets by requiring a permit
(16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has conferred
certain powers pertinent to the subject under consideration upon the City Mayor, and upon the
Municipal Board. Among these is the duty and power of said Mayor "to grant and refuse municipal . .
. permits of all classes . . . for any good reason of general interest" (italics ours), and the power and
duty of the Municipal Board "to regulate the use . . . of street, . . . parks, . . . and other public places .
. ." (italics ours), already above discussed.

Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more
frequent public use, is a public place devoted to traffic between several streets which empty into it
within the district of Quiapo. It is a fact of common knowledge and within the judicial notice of this
Court that said plaza is one of the public places constantly used by an usually great number of
people during all hours of the day and up to late hours of the night, both for vehicular and for
pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those
hours converges and from which it again proceeds in all directions; and the holding during those
hours of a meeting, assembly or rally of the size and nature of that contemplated by petitioner and
those belonging to the Coalesced Minority Parties when the permit in question was requested from
the City Mayor, must have been expected to greatly inconvenience and interfere with the right of the
public in general to devote said plaza to the public uses for which it has been destined since time
immemorial.

The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition
is not absolute but subject to regulation as regards the time, place, and manner of its exercise. As to
time, it seems evident, for example, that the State, directly or through the local government of the
city or municipality, by way of regulation of the right of free speech, may validly prohibit the delivery
of speeches on public streets near private residences between midnight and dawn. As to place, we
have the example of the instant case involving Plaza Miranda or any other public place. And as to
manner, it is a familiar rule that the freedom of speech does not authorize the speaker to commit
slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid
regulations of the right. Among other cases which may be cited on the same point, we have that of
Hague vs. Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the
majority opinion and from which the following passage is copied from the quotation therefrom in the
said opinion:

". . . The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied." (Italics ours.)

I construe this declaration of principles by the United States Supreme Court to imply that where the
regulatory action is predicated upon the "general comfort and convenience," and is "in consonance
with peace and good order," as in the instant case, such action is regulation and not "guise of
regulation," and therefore does not abridge or deny the right.

(b) No constitutional right to use public places under government control, for exercise of right
of assembly and petition, etc.
Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the
constitutional right of assembly and petition, or free speech, claimed by petitioner, but rather of the
use of a public place under the exclusive control of the city government for the exercise of that right.
This, I submit, is a distinction which must be clearly maintained throughout this discussion. No
political party or section of our people has any constitutional right to freely and without government
control make use of such a public place as Plaza Miranda, particularly if such use is a deviation from
those for which said public places have been by their nature and purpose immemorially dedicated. In
other words, the City Mayor did not attempt to have anything to do with the holding of the
"indignation rally" or the delivery of speeches thereat on the date desired at any place over which
said mayor had no control his action was exclusively confined to the regulation of the use of Plaza
Miranda for such a purpose and at such a time. Chief Justice Hughes, speaking for a unanimous
court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

If a municipality has authority to control the uses of its public streets for parades or
processions, as it undoubtedly has, it can not be denied authority to give consideration,
without unfair discrimination, to time, place, and manner in relation to the other proper uses
of the streets. We find it impossible to say that the limited authority conferred by the licensing
provisions of the statute in question as thus construed by the state court contravened any
constituional right. (emphasis ours).

That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal
court in the State of New Hampshire for violation of a state statute prohibiting a "parade or
procession" upon a public street without a special license. The appellants invoked the constitutional
right of free speech and press, as well as that of the assembly. The judgment of the municipal court
was affirmed by the Supreme Court of New Hampshire and that of the latter was affirmed by the
United States Supreme Court. Among other things, the United States Supreme Court said that the
appellants were not prosecuted for distributing leaflets, or for conveying information by placards or
otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, of for
maintaining or expressing religious beliefs. Their right to do any of these things apart from engaging
in a "parade or procession," upon a public street was not involved in the case. The question of the
validity of a statute addressed to any other sort of conduct than that complained of was declared not
to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant case the
constitutional rights of free speech, assmebly, and petition are not before the court but merely the
privilege of petitioner and the Coalesced Minorities to exercise any or all of said rights by using
Plaza Miranda, a public place under the complete control of the city government. In the same case
of Cox vs. New Hampshire, supra, Chief Justice Hughes, in his opinion, used the following eloquent
language:.

"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of
unrestrained abuses. The authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need. Where a restriction of
the use of highways in that relation is designed to promote the public convenience in the
interest of all, it can not be disregarded by the attempted exercise of some civil right which in
other circumstances would be entitled to protectio. One would not be justified in ignoring the
familiar red lightbecause he thought it his religious duty to disobey the municipal command
or sought by that means to direct public attention to an announcement of his opinion...." (85
Law. ed., 1052-1053.).
In other words, when the use of public streets or places is involved, public convenience, public
safety and public order take precedence over even particular civil rights. For if the citizen asserting
the civil right were to override the right of the general public to the use of such streets or places, just
because it is guaranteed by the constitution, it would be hard to conceive how upon the same
principle that citizen be prevented from using the private property of his neighbor for the exercise of
the asserted right. The constitution, in guaranteeing the right of peaceful assembly and petition, the
right of free speech, etc., does not guarantee their exercise upon public places, any more than upon
private premises, without government regulation in both cases, of the owners' consent in the
second..

In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in
affirming the decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver
Wendell Holmes, then of the latter tribunal, quoted from said decision as follows:.

"...As representatives of the public it (legislature) may and does excercise control over the
use which the public may make of such places (public parks and streets), and it may and
does delegate more or less of such control to the city or town immediately concerned. For
the legislature absolutely or conditionally to forbid public speaking in a highway or public park
is no more an infringement of the rights of the member of the public than for the owner of a
private house to forbid it in his house. When no proprietary right interferes the legislature
may end the right of the public to enter upon the public place by putting an end to the
dedication to public uses. So it may take the lesser step of limiting the public use to certain
purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs.
Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70)....".

(c) Authorities cited.--.

I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are,
I think, inapplicable to the oune under consideration, and those which may have some application, I
believe reinforce this dissent. None of them was for mandamus to compel the granting of a permit for
holding a meeting, assembly or the like, upon a public place within the control of the general or local
government..

The fact that a law or municipal ordinance under which a person had been prosecuted for delivering
a speech without the required permit, for example, was declared unconstitutional or otherwise void
for delegating an unfettered or arbitrary discretion upon the lisencing authority, thus completely
failing to confer the discretion, does not mean that such person has the right by mandamus to force
said authority to grant him the permit. If, in such case, the law or ordinance, conferring the discretion,
is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit would involve self-
contradictory proposition, for the very idea of a permit is something which may be granted or witheld.
He who has the power to grant permission for the doing of an act necessarily has the correlative
power to deny the permission. A "permit" which under no conditions or circumstances and at no time
can be refused needs a different name..

Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of
New Hampshire which was construed by the Supreme Court of the same State as not conferring
upon the licensing board unfettered discretion to refuse the license, and was held valid both by said
Supreme Court and the Supreme Court of the United States..

In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the
Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to grant or to refuse
the permit is controlled and limited by the all important requirement of the same section that
whatever his determination, it should be "for any good reason of general interest.".

In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the
power of City councils under the state law to regulate the use of the public streets could not be
delegated by them, and therefore could not be delegated to the superintendent of police. But in our
case, the power of the City Mayor under the Revised Administrative Code has not been delegated
by the Municipal Board of Manila but has been directly conferred by the State through its legislature.
.

In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance
committing to the unrestrained will of public officer the power to determine the rights of parties under
the ordinance without anything (to guide or control his action.) In our case, as already stated, the city
mayor received his power from the State through the Legislature which enacted the Revised
Administrative Code, and moreover, his action therein provided to be guided and controlled by the
already mentioned requirement that whether he grants or refuses a municipal premit of any class it
shall be for some "good reason of general interest," and not as his unfettered will may dictate..

The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void
by the Supreme Court of Michigan, the ordinance prohibiting certain uses of the public streets of the
City of Grand Rapids "without having first obtained the consent of the Mayor or Common Council of
said City." The ordinance did not prescribe any guide, control or limitation for, of, and to, the exercise
of the power thus conferred upon the mayor or common council. The following passage from the
quotation from the decision of the Supreme Court of Michigan made in the majority opinion would
seem to reinforce the stand taken in this dissent..

"...We must therefore construe this Charter and the powers it assumes to grant, so far as it is
not plainly unconstitutional, as only conferring such power over the subjects referred to as
will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under a constitution than under the
common law..

"It is quite possible that some things have a greater tendency to produce danger and
disorder in the cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose and no grant of absolute discretion to suppress
lawful action altogether can be granted at all...." (emphasis ours.)

The instant case is concerned with an "indignation rally" to be held at one of the busiest and most
frequented public places in this big cosmopolitan city, with a present population estimated to be 150
per cent larger than its prewar population, and the public officer who was being called upon to act on
the petition for permit was the chief executive of the city who was by reason of his office the officer
most directly responsible for the keeping and maintenance of peace and public order for the
common good. And as stated elsewhere in this dissent, his power in the premises was not without
control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of
the right claimed but was merely a postponement of the use of a public place for the excercise of
that right when popular passions should have calmed down and public excitement cooled off
sufficiently to better insure the avoidance of public peace and order being undermined..

Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court there held that
when men in authority are permitted in their discretion to excercise "power so arbitrary , liberty is
subverted, and the spirit of our free institution violated." (Emphasis ours.) This is not our case, as the
power of the Manila Mayor now under consideration is not at all arbitrary. It was further held in that
case that where the granting of the permit is left to the unregulated discretion of a small body of city
alderman, th ordinance can not be other than partial and discriminating in its practical operation. The
case at bar is radically different for, as already shown, the discretion of the City Mayor here is not
unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory
condition precedent to the exercise of the power one way or the other. And just as certainly the
reasons alleged by the respondent Mayor for his action stated in his letters dated November 15 and
17, 1947, addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and well
taken, consideration being had of his grave responsibilities as the immediate keeper of peace and
public order in the city. Elsewhere in this dissent we quote from said documents textually..

On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs.
New Hampshire, supra, which says:.

"As regualtion of the use of the streets for parades or processions is a traditional exercise of
control by local government, the question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places.".

The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of
assembly, such control is legally valid. This is precisely our case, since the respondent Mayor
neither denied not unwarrantedly abridged the right asserted by petitioner and his companions. If the
postponement of the granting of the permit should be taken as a denial of the right, then we would
practically be denying the discretion of the proper official for it would be tantamount to compelling
him to grant the permit outright, which could necessarily mean that he can never refuse the permit,
for one who cannot even postpone the granting of such permit much less can altogether refuse it. .

Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being
clearly distinguishable from the instant case as later demonstrated, contains the passage quoted on
page 7 of this dissent, which decidedly supports it. The distinction between that case and this is that
there "the ordinance deals only with the exercise of the right of assembly for the purpose of
communicating views entertained by speakers, and is not a general measure to promote the public
convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the instant case section
2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act
for it likewise provides permission, and in both cases is expressly aimed at promoting the "general
interest." .

Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of
this dissent as appears from No. 2 of the syllabus therein:.

"A statute requiring persons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional abridgement of
the rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to
a consideration of time, place, and manner, of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide proper policing,
and are not invested with arbitrary discretion to issue or refuse licenses, but are required to
exercise their discretion free from the improper or inappropriate consideration and from
unfair discrimination." (Emphasis ours.).
In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of
general interest," the Revised Administrative Code plainly has in view only the common good and
excludes all "improper or inappropriate considerations" and "unfair discrimination" in the exercise of
the granted discretion.

Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox vs. State of
New Hampshire supra, the choice is obvious with regard to their authoritative force, when it is
considered that in the former out of the nine Justices of the United States Supreme Court two did not
take part and of the seven who dis only two, Justices Roberts and Black, subscribed the opinion
from which the majority here quote, while in the latter (Cox vs. State of New Hampshire) the decision
was unanimous..

(d) Mandamus unavailable.--- .

Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses
the rule obtaining in the United States that the immunity from judicial control appertaining to the
Office of the Governor of the State, or to the Presidency of the United States, does not attach to the
mayoralty of a city. But on page 878, section 2728, ha has the following to say on the unavailability
of mandamus to compel the granting of licenses and permits by municipal officers:.

"SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license
or permit is discretionary with the officer or municipal board, it is clear that it cannot be
compelled by mandamus. The cases rarely, if ever, depart from this well established rule,
and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the
remedy. As already stated, the fundamental condition is that the petition must show a clear
legal right to the writ and a plain neglect of duty on the part of the public officer to perform the
act sought to be enforced. For example, one who seeks to compel a city to issue to him a
permit for the erection of a buiding must show compliance with all valid requirements of the
building ordinances and regulations..

"The granting of licenses or permits by municipal or other public authorities, as mentioned, is

usually regarded as a discretionary duty, and hence, ordinarily mandamus will not lie to
compel them to grant a license or issue a permit to one claiming to be entitled thereto,
especially where it is not alleged and shown that the exercise of such discretion was
arbitrary. All the court can do is to see that the licensing authorities have proceeded
according to law. Their decision will not be reviewed on its merits. Where, however, refusal
to grant a license or to issue a permit, as said above, is arbitrary or
capricious mandamus will lie to compel the appropriate official action...." .

To my mind, the following reasons, alleged by the respondent mayor, negative all element of
arbitrariness in his official action:.

"...please be advised that upon reading the metropolitan newspapers this morning wherein it
appears that your meeting will be an indignation rally at which all the supposed election
frauds allegedly perpetrated in many parts of the Philippines for the purpose of overriding the
popular will, will be bared before the people, this office hereby revokes the said permit..

"It is believed that public peace and order in Manila will be undermined at the proposed rally
considering the passions have not as yet subsided and tension remains high as an aftermath
of the last political contest..
"According to the same newspapers, delegates from the provinces and students from local
universities will particpate in the said rally which, in my opinion, would only precipitate trouble
since no guarantee can be given that only the opposition elements will be there. The moment
the crowd becomes mixed with people of different political colors which is most likely to
happen, public order is exposed to danger once the people are incited, as they will be
incited, considering the purposes for which the meeting will be held as reported in the
newspapers above mentioned..

"...." (Mayor's letter dated November 15, 1947.).

"I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a
permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947,
for the purpose of denouncing the alleged fraudulent manner in which the last elections have
been conducted and the alleged nationwide flagrant violation of the Election Law, and of
seeking redress therefor. It is regretted that for the same reasons stated in my letter of
November 15, 1947, your request can not be granted for the present. This Office has
adopted the policy of not permitting meetings of this nature which are likely to incite the
people and disrupt the peace until the results of the elections shall have been officially
announced. After this announcement, requests similar to yours will be granted..

"...." (Mayor's letter dated November 17, 1947.).

"That according to Congressman Primicias, the meeting will be an indignation rally for the
purpose of denouncing the alleged fraudulent manner the said elections were conducted and
the nationwide falgrant violations of the Election Law;.

"2. That it is a fact that the returns of the last elections are still being recounted in the City of
Manila in the Commission on Elections, and pending the final announcement of the results
thereof, passions, especially on the part of the losing groups, remain bitter and high;.

"3. That allusions have been made in the metropolitan newspapers that in the case of defeat,
there will be minority resignations in Congress, rebellion and even revolution in the country;.

"4. That I am sure that the crowd that will attend said meeting will be a multitude of people of
different and varied political sentiments;.

"5. ....... .

"6. That judging from the tenor of the request for permit and taking into consideration the
circumstances under which said meeting will be held, it is safe to state that once the people
are gathered thereat are incited, there will surely be trouble between the opposing elements,
commotion will follow, and then peace and order in Manila will be disrupted; and.

"7. That the denial of said request for permit has been made for no other reasons except to
perform my duty as Mayor of Manila to maintain and preserve peace and order in this City..

8. That I have assured Congressman Primicias that immediately after the election returns
shall have been officially announced, the Nacionalista Party or any party will be granted
permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1, Answer.).
For these and other reasons which could be advanced in corroboration, I am of the considered
opinion that the respondent Mayor had under the law the requisite discretion to grant or refuse the
permit requested, and therefore to revoke that which had previously been granted, and that the
reasons for such revocation alleged in his letters dated November 15 and 17, 1947, to petitioner and
in his affidavit Annex 1 were amply sufficient to justify his last action. And be it distinctly observed
that this last action was not an absolute denial of the permit, but a mere postponement of the time
for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of
the Revised Admninistrative Code..

TUASON, J., dissenting:.

I join in Mr. Hilado's dissent and wish to add a few remarks..

As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble assemblage, is only an
incidental issue in this case. No one will contest the proposition that the mayor or the Congress itself
may stop the petitioner and his men from meeting peacebly and venting their grievances in a private
place. The main issue rather is the extent of the right of any group of people to use a public street or
a public plaza for a purpose other than that for which it is dedicated..

The constitutional guaranty of free speech does not prevent the government from regulating the use
of places within its control. A law or ordinance may forbid the delivery of addresses on the public
parks, or on the streets as a valid exrcise of police power. (12 C. J., 954) Rights of assembly and of
petition are not absolute rights and are to be construed with regard to the general law. (16 C.J.S.,
640) Indeed, "the privileges of a citizen of the United States to use the streets and parks for the
communication of views on national questions...must be exercised in subordination to the general
comfort and convenience." (Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83
Law. ed., 1433) And so long as the municpal authorities act within the legitimate scope of their police
power their discretion is not subject to outside interference or judicial revsion or reversal (14 C. J.,
931.).

The mayor did not act capriciously or arbitrarily in withholding or postponing the permit applied for by
the petitioner. His reasons were real, based on contemporary events of public knowledge, and his
temporary refusal was reasonably calculated to avoid possible disturbances as well as to adavance
and protect the public in the proper use of the most congested streets and public plaza in an
overcrowded city. There was reason to fear disturbances, not from the petitioner and his men but
from elements who had no connection with the holding of the meeting but who, having gripes, might
be easily excited to violence by inflammatory harangues when nerves were on edge. The fact that
no untoward incident occurred does not prove the judiciousness of this Court's resolution. The court
is not dealing with an isolated case; it is laying down a rule of transcendental importance and far-
reaching consequences, in the administration of cities and towns. If nothing happened, it is well to
remember that, according to newspapers, 500 policemen were detailed to prevent possible disorder
at the gathering. It should also be borne in mind that vehicular traffic in the vicinity of Plaza Miranda
had to be suspended and vehicles had to be rerouted, during and after the meeting. All of which
entailed enormous expense by the city and discomforts to the general public..

No individual citizen or group of citizens certainly has a right to claim the use of a public plaza or
public streets at such great expense and sacrifice on the part of the city and of the rest of the
community. Yet, by virtue of this Court's resolution any person or group of persons invoking political,
civil or religious freedom under the constitution is at liberty to stage a rally or parade or a religious
procession, with the mayor powerless to do anything beyond seeing to it that no two meetings or
parades were held in the same place or close to each other. No precedent in the United States, after
whose institutions ours are modelled, approaches this Court's resolution in its disregard of the
government's authority to control public streets and to maintain peace and order. In an infant
republic where the state of peace and order is still far from normal, where the forces of law are far
from adequate to cope with lawlessness; in a city where conditions of traffic are among the worst if
not the worst on earth, this Court sets down a principle that outstrips its prototype in "liberality",
forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief Justice
Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized society maintaining public order without which
liberty itself would be lsot in the excesses of unrestrained abuses. The authority of the municipality to
impose regulations in order to assure the safety and convenience of the people in the use public
highways has never been regarded as inconsistent with civil liberties, but rather as one of the means
of safeguarding the good order upon which they ultimately depend." To be logical, peddlers and
merchants should be given, as a matter of right, the freedom to use public streets and public
squares to ply their trade, for the freedom of expression and of assemblage is no more sacred than
the freedom to make a living. Yet no one has dared make such a claim..

The cases cited in the resolution are not applicable. It will be seen that each of these cases involved
the legality of a law and municipal ordinance. And if in some of said cases a law or an ordinance was
declared void, the grounds of invalidation were either discrimination or lack of authority of the
Legislature or the municipal council under the state constitution or under the law to adopt the
contested measure..

As applied to Manila, there are both a law and an ordiance regulating the use of public places and
the holding of meetings and parades in such places. As long as this law and this ordinance are in
force the mayor does not only have the power but it is his sworn duty to grant or refuse a permit
according to what he believes is in consonance with peace and order or is proper to promote the
general comfort and convenience of the inhabitants..

The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific of
substantive power independent from the corresponding municipal ordinance which the Mayor, as
Chief Executive of the City, is required to enforceunder the same section 2434." The Court advances
the opinion that because section 2444 confers upon the municipal board "the police power to
regulates the use of streets and othe public places," "It is to be presumed that the Legislature has
not, in the same breath, conferred upon the Mayor in section 2434 (m), the same power, specially if
we take into account that its exercise may be in conflict with the exercise of the same power by the
municipal board.".

Section 2434 (m) is written in the plainest language for any casual reader to understand, and it is
presumed that it means what it says. This provision certainly was not inserted in the city charter,
which must have been drawn with painstaking care, for nothing. And I am aware of no constitutional
provision or constitutional maxim which prohibits the delegation by the Legislature of part of its police
power affacting local matters, directly upon the mayor instead of through the municipal board. Nor is
there incompatibilty between section 2434 (m) and section 2444 or the ordinance enacted under the
latter. At any rate, section 2434 (m) is of special character while section 2444 is general, so that, if
there is any conflict between section 2434 (m) and the ordinance passed under section 2444, the
former is to prevail..

This Court has already set at rest the validity, meaning any scope of section 2434 (m) in a
unanimous decision with all the nine members voting, when it sustained the mayor's refusal to grant
a permit for a public meeting on a public plaza to be followed by a parade on public streets.
(Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434 (m) in that decision was not
an obiter dictum as the majority say. The sole question presented there, as we gather from the facts
disclosed, was the legality of the mayor's action, and the court pointed to section 2434 (m) as the
mayor's authority for his refusal. The fact that the mayor could have denied the petitioner's
application under the general power to prohibit a meeting for unlawful purposes did not make the
disposition of the case on the strength of section 2434 (m) obiter dictum. An adjudication on any
point within the issues presented by the case cannot be considered a dictum; and this rule applies
as to all pertinent questions, although only incidentally involved, which are presented and decided in
the regular course of the consideration of the case, and lead up to the final conclusion, and to any
statement in the opinion as to a matter on which the decision is predicated. Accordingly, a point
expressly decided does not lose its value as a precedent because the disposition of the case is or
might have been on some other ground, or even though, by reason of other points in the case, the
result reached might have been the same if the court had held, on the particular point, otherwise
than it did. (1 C. J. S. 314-315.).

But the Court asserts that if the meaning of section 2434 (m) is what this Court said in Evangelista-
Earnshaw case, then section is void. I do not think that that provision is void--at least not yet. Until it
is invalidated in the proper case and in the proper manner, the mayor's authority in respect of the
issuance of permits is to be measured by section 2434 (m) and by the municipal ordinance in so far
as the ordinance does not conflict with the law. The validity of that provision is not challenged and is
nowhere in issue. It is highly improper, contrary to the elementary rules of practice and procedure for
this Court to say or declare that the provision is void. Moreover, Article VIII, section 10, of the
Constitution provides that "all cases involving the constitutionality of a treaty or a law shall be heard
and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional
without the concurrence of two-thirds of all the members of the court." Only seven voted in favor of
the resolution...

1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal Auxiliar de Manila D.
Julio Villamor, en representacion del recurrido..

2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se celebro en la
noche del 22 de Noviembre en virtud de nuestra resolucion concediendo el presente recurso
de mandamus-- el mas grande que se ghaya celebrado jamas en Manila, segun la prensa, y al cual
se calcula que assistieron unas 80,000 personas--fue completamente pacifico y ordenado, no
registrandose el menor incidente desagradable. Segun los periodicos, el mitin fue un magnifico acto
de ciudadania militante y responsable, vindicatoria de la fe de todos aquellos que jamas habian
dudado de la sensatez y cultura del pueblo de Manila. .

3 Madame Roland..

4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los que conocen
Mejico aseguran que, merced a esta consigna, la era de las convulsiones y guerras civiles en
aquella republica ha pasado definitivamente a la historia. .

5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el Gobierno de
Roma; fue la de los censores. Hacian el censo del pueblo, y, ademas, como la fuerza de la
republica consistia en la disciplina, la austeridad de las costumbres y la observacion constante de
ciertos ritos, los censores corregian los abusos que la ley no habia previsto o que el magistrado
ordinario no podia castigar.....
"El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el espiritu del pueblo, la
fuerza del Senado o la autoridad de ciertos magistrados, estaba constituido de tal modo, que todo
abuso de poder pudo ser siempre corregido. .

"El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de examinarlo
continuamente y de examinarse a si mismo; sus errores son de suerte que nunca se prolongan, y
por el espiritu de atencion que despiertan en el pais, son a menudo utiles. .

"En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es por sus propias
leyes capaz de corregirse." ("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74,
76 y 77.) .

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third

Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense
of the rights of the individual from the vast powers of the State and the inroads of societal
pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond
which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish
with very little regard to social interference - he veritably acknowledges that the exercise of
rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all
cost, against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in

interfering with the liberty of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-
preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it
behooves the State to formulate a system of laws that would compel obeisance to its collective
wisdom and inflict punishment for non-observance.
 The movement from Mill's individual liberalism to unsystematic collectivism wrought
changes in the social order, carrying with it a new formulation of fundamental rights and duties
more attuned to the imperatives of contemporary socio-political ideologies. In the process, the
web of rights and State impositions became tangled and obscured, enmeshed in threads of
multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It is when individual
rights are pitted against State authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA
7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA
7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses
that thin but distinct line which divides the valid from the constitutionally infirm. He therefore
makes a stringent call for this Court to subject the Plunder Law to the crucible of
constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b)
it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes
the element of mens rea in crimes already punishable under The Revised Penal Code, all of
which are purportedly clear violations of the fundamental rights of the accused to due process
and to be informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,

enterprise or material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the following
means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or

raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

National Government or any of its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code shall be considered
by the court. The court shall declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State (underscoring
supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it

shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8)
separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as
amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3,
par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices
Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim.
Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No.
26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the
Ombudsman for preliminary investigation with respect to specification "d" of the charges in the
Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses
under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits
and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised
were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of the charges and the
vagueness of the law under which they are charged were never raised in that Omnibus
Motion thus indicating the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No.
26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance
of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the
ground that the facts alleged therein did not constitute an indictable offense since the law on
which it was based was unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the
issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is
unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the accused to due process; and,
(c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within
the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is
predicated on the basic principle that a legislative measure is presumed to be in harmony with the
Constitution.[3] Courts invariably train their sights on this fundamental rule whenever a legislative
act is under a constitutional attack, for it is the postulate of constitutional adjudication. This
strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one
branch of the government to encroach upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the judicial branch accords to its coordinate
branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must
assume that the legislature is ever conscious of the borders and edges of its plenary powers, and
has passed the law with full knowledge of the facts and for the purpose of promoting what is
right and advancing the welfare of the majority. Hence in determining whether the acts of the
legislature are in tune with the fundamental law, courts should proceed with judicial restraint and
act with caution and forbearance. Every intendment of the law must be adjudged by the courts in
favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the
provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as
long as there is some basis for the decision of the court, the constitutionality of the challenged
law will not be touched and the case will be decided on other available grounds. Yet the force of
the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs
of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed
domain of the organic law, it must be struck down on sight lest the positive commands of the
fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party
challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there
is indeed an infringement of the constitution, for absent such a showing, there can be no finding
of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by
Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant
case to discharge his burden and overcome the presumption of constitutionality of the Plunder
Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined
parameters which would enable the accused to determine the nature of his violation. Section 2 is
sufficiently explicit inits description of the acts, conduct and conditions required or forbidden,
and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination

or series of the following overt or criminal acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the NationalGovernment or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled corporations or
their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or (f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.
 As long as the law affords some comprehensible guide or rule that would inform those who
are subject to it what conduct would render them liable to its penalties, its validity will be
sustained. It must sufficiently guide the judge in its application; the counsel, in defending one
charged with its violation; and more importantly, the accused, in identifying the realm of the
proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed
statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at
least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law, indicating
with reasonable certainty the various elements of the offense which petitioner is alleged to have
committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the

Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A.
No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,

MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-
FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating,

converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED
THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion
of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax
share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE
OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS
AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR
RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS,
FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,

PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none
- that will confuse petitioner in his defense. Although subject to proof, these factual assertions
clearly show that the elements of the crime are easily understood and provide adequate contrast
between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is
completely informed of the accusations against him as to enable him to prepare for an intelligent
defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of
the terms "combination" and "series" in the key phrase "a combination or series of overt or
criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec.
4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to be informed of the nature and
cause of the accusation against him, hence, violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and
void merely because general terms are used therein, or because of the employment of terms
without defining them;[6] much less do we have to define every word we use. Besides, there is no
positive constitutional or statutory command requiring the legislature to define each and every
word in an enactment. Congress is not restricted in the form of expression of its will, and its
inability to so define the words employed in a statute will not necessarily result in the vagueness
or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident
that the legislature intended a technical or special legal meaning to those words.[8] The intention
of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to
use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted definition of the words
"combination" and "series:"

Combination - the result or product of combining; the act or process of

combining. To combine is to bring into such close relationship as to obscure
individual characters.

Series - a number of things or events of the same class coming one after another in
spatial and temporal succession.
 That Congress intended the words "combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative deliberations on the bill which
eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May

1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say

THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF.Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that number one
and two or number one and something else are included, how about a series of the
same act? For example, through misappropriation, conversion, misuse, will these be
included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we
seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
 SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words a
series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as.
Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say acts of plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts
falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the
public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal
acts falling under the same category of enumeration found in Sec. 1, par. (d), say,
misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1,
par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in specifically providing for it in
the law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is
sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or
series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1
(d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is
directed towards a common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and
sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the
"void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in
various ways, but is most commonly stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient definiteness that persons of ordinary intelligence
can understand what conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by
a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply
as against legislations that are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first may be "saved" by proper construction,
while no challenge may be mounted as against the second whenever directed against such
activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear
and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practice.[12] It must be stressed, however, 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, especially where, because of the nature of
the act, it would be impossible to provide all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V.
Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague
and overbroad do not justify a facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that
"a governmental purpose may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."[14]

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a
statute drawn with narrow specificity."[15] The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional."[20] As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated [only]
'as applied' to a particular defendant."[21] Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in its
entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities
are constitutionally protected.[22] It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made without
concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme
Court pointed out in Younger v. Harris[24]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary.The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must
be examined in the light of the conduct with which the defendant is charged.[27]

In light of the foregoing disquisition, it is evident that the purported ambiguity of the
Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than
real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute
to furnish support to critics who cavil at the want of scientific precision in the law. Every
provision of the law should be construed in relation and with reference to every other part. To be
sure, it will take more than nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted for its passage,
petitioner must be aware that the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his affirmative vote with full
knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and
emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law
itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction
that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being
vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and
elastic with no common law meaning or settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to penalize.Petitioners further argued that the
Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted"
benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad
faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in
the discharge of their official function and that their right to be informed of the nature and cause
of the accusation against them was violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest
partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the
different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be
committed, and the use of all these phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support;
unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or
without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of
Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition,
Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt
practice and make unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in

the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep.
Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official, administrative or
judicial functions, in giving any private party benefits, advantage or preference which
is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the
term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was
understood in its primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the
Plunder Law circumvents the immutable obligation of the prosecution to prove beyond
reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof
of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall
not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal
prosecution for plunder, as in all other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is
entitled to an acquittal.[29] The use of the"reasonable doubt" standard is indispensable to
command the respect and confidence of the community in the application of criminal law. It is
critical that the moral force of criminal law be not diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also important in our free
society that every individual going about his ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his
guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in
the realm of constitutional law as it gives life to the Due Process Clause which protects the
accused against conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo
Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of
Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9

October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him
guilty of the other acts enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less than P100 million, but
the totality of the crime committed is P100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
 MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the
robber in the information three pairs of pants, pieces of jewelry. These need not be proved
beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was
charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved
two. Now, what is required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt criminal acts has to be
taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in
the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality
of the other acts as required under this bill through the interpretation on the rule of evidence, it is
just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now, in a series of defalcations
and other acts of corruption in the enumeration the total amount would be P110 or P120 million,
but there are certain acts that could not be proved, so, we will sum up the amounts involved in
those transactions which were proved. Now, if the amount involved in these transactions, proved
beyond reasonable doubt, is P100 million, then there is a crime of plunder(underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the
standard quantum of proof in the crime of plunder. The burden still remains with the prosecution
to prove beyond any iota of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime
suffers from a dismal misconception of the import of that provision. What the prosecution needs
to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or
series which would constitute a pattern and involving an amount of at
least P50,000,000.00. There is no need to prove each and every other act alleged in the
Information to have been committed by the accused in furtherance of the overall unlawful
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing
that the accused is charged in an Information for plunder with having committed fifty (50) raids
on the public treasury. The prosecution need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only
that they amounted to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion
that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy"
inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise,
such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate
acts. This conclusion is consistent with reason and common sense. There would be no other
explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it necessarily follows with the establishment
of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that
"pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged,
(as) it contains a rule of evidence and a substantive element of the crime," such that without it the
accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of
the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised
Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond
reasonable doubt without applying Section 4, can you not have a conviction under the Plunder
Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the
law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and
it contains a substantive element of the crime of plunder. So, there is no way by which we can
avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can
be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern"
is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder
xxxx
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal
case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any
substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a
means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a
conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is
flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the
rest of the provisions without necessarily resulting in the demise of the law; after all, the existing
rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides
for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application

thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the application of such
provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as
a result of the nullity of some of its provisions, assuming that to be the case although it is not
really so, all the provisions thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in
se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens
rea must be proven in a prosecution for plunder. It is noteworthy that the amended
information alleges that the crime of plunder was committed "willfully, unlawfully
and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens
rea and that is the reason he claims the statute is void, petitioner cites the following
remarks of Senator Taada made during the deliberation on S.B. No. 733:

SENATOR TAADA . . . And the evidence that will be required to convict him would
not be evidence for each and every individual criminal act but only evidence sufficient
to establish the conspiracy or scheme to commit this crime of plunder.[33]

However, Senator Taada was discussing 4 as shown by the succeeding portion of the
transcript quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in
Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a
speedier and faster process of attending to this kind of cases?

SENATOR TAADA: Yes, Mr. President . . .[34]

Senator Taada was only saying that where the charge is conspiracy to commit plunder,
the prosecution need not prove each and every criminal act done to further the scheme
or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt
or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the
acts constituting the pattern are concerned, however, the elements of the crime must
be proved and the requisite mens rea must be shown.

Indeed, 2 provides that -

Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal

Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens
rea is an element of plunder since the degree of responsibility of the offender is
determined by his criminal intent. It is true that 2 refers to "any person who
participates with the said public officer in the commission of an offense contributing
to the crime of plunder." There is no reason to believe, however, that it does not apply
as well to the public officer as principal in the crime. As Justice Holmes said: "We
agree to all the generalities about not supplying criminal laws with what they omit,
but there is no canon against using common sense in construing laws as saying what
they obviously mean."[35]

Finally, any doubt as to whether the crime of plunder is a malum in se must be

deemed to have been resolved in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable by reclusion perpetua to
death. Other heinous crimes are punished with death as a straight penalty in R.A. No.
7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:[36]

The evil of a crime may take various forms. There are crimes that are, by their very
nature, despicable, either because life was callously taken or the victim is treated like
an animal and utterly dehumanized as to completely disrupt the normal course of his
or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson
resulting in death; and drug offenses involving minors or resulting in the death of the
victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be struggling to develop and
provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous are the
effects and repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees or officers, that
their perpetrators must not be allowed to cause further destruction and damage to
society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in se[37]and it does not matter that such acts are
punished in a special law, especially since in the case of plunder the predicate crimes
are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P.
Blg. 22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA
7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for
him to resurrect thislong dead issue, the same having been eternally consigned by People v.
Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that
RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in
high places which have shaken its very foundation. The anatomy of graft and corruption has
become more elaborate in the corridors of time as unscrupulous people relentlessly contrive
more and more ingenious ways to bilk the coffers of the government. Drastic and radical
measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law, especially
designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked,
will spread like a malignant tumor and ultimately consume the moral and institutional fiber of
our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to
ultimately eradicate this scourge and thus secure society against the avarice and other venalities
in public office.
These are times that try men's souls. In the checkered history of this nation, few issues of
national importance can equal the amount of interest and passion generated by petitioner's
ignominious fall from the highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among our people that may linger
for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the
Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to
declare the law unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

G.R. No. L-40486 August 29, 1975

PAULINO PADUA and LUCENA BEBIN PADUA, plaintiffs-appellants,

vs.
GREGORIO N. ROBLES and BAY TAXI CAB, defendants-appellees.

Alberto R. de Joya for plaintiffs-appellants.

Cardenas & Peralta Law Office for defendants-appellees.

CASTRO, J.:

Resolving this appeal by the spouses Paulino and Lucena Bebin Padua, we set aside the order
dated October 25, 1972 of the Court of First Instance of Zambales dismissing their complaint, in civil
case 1079-O, and remand this case for further proceedings.

In the early morning of New Year's Day of 1969 a taxicab (bearing 1968 plate no. TX-9395 and
driven by Romeo N. Punzalan but operated by the Bay Taxi Cab owned by Gregorio N. Robles)
struck ten-year old Normandy Padua on the national road in barrio Barretto, Olongapo City. The
impact hurled Normandy about forty meters away from the point where the taxicab struck him, as a
result of which he died.

Subsequently, Normandy's parents (Paulino and Lucena Bebin Padua), by complaint filed with the
Court of First Instance of Zambales (civil case 427-O), sought damages from Punzalan and the Bay
Taxi Cab; likewise, the city Fiscal of Olongapo, by information filed with the same court (criminal
case 1158-O), charged Punzalan with homicide through reckless imprudence.

On October 27, 1969 the court a quo, in civil case 427-O, adjudged for the Paduas as follows:

WHEREFORE, judgment is hereby rendered ordering the defendant Romeo

Punzalan to pay the plaintiffs the sums of P12,000.00 as actual damages, P5,000.00
as moral and exemplary damages, and P10,000.00 as attorney's fees;
and dismissing the complaint insofar as the Bay Taxicab Company is concerned.
With costs against the defendant Romeo Punzalan. (Emphasis supplied)

Almost a year later, on October 5, 1970, the court a quo, in criminal case 1158-O, convicted
Punzalan, as follows:

WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty
beyond reasonable doubt of the crime of homicide through reckless imprudence, as
defined and penalized under Article 365 of the Revised Penal Code, attended by the
mitigating circumstance of voluntary surrender, and hereby sentences him to suffer
the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY
of prision mayor, as maximum, and to pay the cost. The civil liability of the accused
has already been determined and assessed in Civil Case No. 427-O, entitled Paulino
Padua, et al. vs. Romeo Punzalan, et al.' (Emphasis supplied)

After the judgment in civil case 427-O became final, the Paduas sought execution thereof. This
proved futile; the corresponding court officer returned the writ of execution unsatisfied.

Unable to collect the amount of P27,000 awarded in their favor, the Paduas instituted action in the
same court against Gregorio N. Robles to enforce the latter's subsidiary responsibility under the
provisions of article 103 of the Revised Penal Code. Robles filed a motion to dismiss based on (1)
bar of the cause of action by a prior judgment and (2) failure of the complaint to state a cause of
action.

Thereafter, the court a quo, in an order dated October 25, 1972, granted Robles' motion to dismiss
on the ground that the Paduas' complaint states no cause of action. This order the Paduas
questioned in the Court of Appeals which, by resolution dated March 5, 1975, certified the case to
this Court for the reason that the appeal involves only questions of law.

The Paduas predicate their appeal on eighteen errors allegedly committed by the court a quo. These
assigned errors, however, raise only one substantial issue: whether the judgment dated October 5,
1970 in criminal case 1158-O includes a determination and adjudication of Punzalan's civil liability
arising from his criminal act upon which Robles' subsidiary civil responsibility may be based.

The sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In
construing a judgment, its legal effects including such effects that necessarily follow because of legal
implications, rather than the language used govern. Also, its meaning, operation, and consequences
must be ascertained like any other written instrument. Thus, a judgment rests on the intention of the
court as gathered from every part thereof, including the situation to which it applies and the
attendant circumstances.

It would appear that a plain reading, on its face, of the judgment in criminal case 1158-O, particularly
its decretal portion, easily results in the same conclusion reached by the court a quo: that the said
judgment no civil liability arising from the offense charged against Punzalan. However, a careful
study of the judgment in question, the situation to which it applies, and the attendant circumstances,
would yield the conclusion that the court a quo, on the contrary, recognized the enforceable right of
the Paduas to the civil liability arising from the offense committed by Punzalan and awarded the
corresponding indemnity therefor.

Civil liability coexists with criminal responsibility. In negligence cases the offended party (or his heirs)
has the option between an action for enforcement of civil liability based on culpa criminal under
article 100 of the Revised Penal Code and an action for recovery of damages based on culpa
aquiliana under article 2177 of the Civil Code. The action for enforcement of civil liability based
on culpa criminal section 1 of Rule 111 of the Rules of Court deems simultaneously instituted with
the criminal action, unless expressly waived or reserved for a separate application by the offended
party. Article 2177 of the Civil Code, however, precludes recovery of damages twice for the same
negligent act or omission.

In the case at bar, the Court finds it immaterial that the Paduas chose, in the first instance, an action
for recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180 of the Civil
Code, which action proved ineffectual. The Court also takes note of the absence of any
inconsistency between the aforementioned action priorly availed of by the Paduas and their
subsequent application for enforcement of civil liability arising from the offense committed by
Punzalan and consequently, for exaction of Robles' subsidiary responsibility. Allowance of the latter
application involves no violation of the proscription against double recovery of damages for the same
negligent act or omission. For, as hereinbefore stated, the corresponding officer of the court a quo
returned unsatisfied the writ of execution issued against Punzalan to satisfy the amount of indemnity
awarded to the Paduas in civil case 427-O. Article 2177 of the Civil Code forbids actual double
recovery of damages for the same negligent act or omission. Finally, the Court notes that the same
judge * tried, heard, and determined both civil case 427-O and criminal case 115-O. Knowledge of an familiarity with all the facts and
circumstances relevant and relative to the civil liability of Punzalan may thus be readily attributed to the judge when he rendered judgment in
the criminal action.

In view of the above considerations, it cannot reasonably be contended that the court a
quo intended, in its judgment in criminal case 1158-O, to omit recognition of the right of the Paduas
to the civil liability arising from the offense of which Punzalan was adjudged guilty and the corollary
award of the corresponding indemnity therefor. Surely, it cannot be said that the court intended the
statement in the decretal portion of the judgment in criminal case 1158-O referring to the
determination and assessment of Punzalan's civil liability in civil case 427-O to be pure jargon or
"gobbledygook" and to be absolutely of no meaning and effect whatever. The substance of such
statement, taken in the light of the situation to which it applies and the attendant circumstances,
makes unmistakably clear the intention of the court to accord affirmation to the Paduas' right to the
civil liability arising from the judgment against Punzalan in criminal case 1158-O. Indeed, by
including such statement in the decretal portion of the said judgment, the court intended to adopt the
same adjudication and award it made in civil case 427-O as Punzalan's civil liability in criminal case
1158-O.

There is indeed much to be desired in the formulation by Judge Amores of that part of the decretal
portion of the judgment in criminal case 1158-O referring to the civil liability of Punzalan resulting
from his criminal conviction. The judge could have been forthright and direct instead of circuitous
and ambiguous. But, as we have explained, the statement on the civil liability of Punzalan must
surely have a meaning and even if the statement were reasonably susceptible of two or more
interpretations, that which achieves moral justice should be adopted, eschewing the other
interpretations which in effect would negate moral justice.

It is not amiss at this juncture to emphasize to all magistrates in all levels of the judicial hierarchy
that extreme degree of care should be exercise in the formulation of the dispositive portion of a
decision, because it is this portion that is to be executed once the decision becomes final. The
adjudication of the rights and obligations of the parties, and the dispositions made as well as the
directions and instructions given by the court in the premises in conformity with the body of the
decision, must all be spelled out clearly, distinctly and unequivocally, leaving absolutely no room for
dispute, debate or interpretation.

We therefore hold that the Paduas' complaint in civil case 1079-O states a cause of action against
Robles whose concommitant subsidiary responsibility, per the judgment in criminal case 1158-O,
subsists.

ACCORDINGLY, the order a quo dated October 25, 1972 dismissing the complaint in civil case
1079-O is set aside, and this case is hereby remanded to the court a quo for further proceedings
conformably with this decision and with law. No pronouncement as to costs.

Makalintal, C.J., Teehankee, Makasiar, Esguerra, Aquino, Concepcion Jr. and Martin, JJ., concur.

Fernando, J., concurs and submits a brief opinion.

Barredo, J., concurs with a separate opinion.

Muoz Palma, J., took no part.

Antonio, J., is on leave.

Separate Opinions

FERNANDO, J., concurring:

The clarity and lucidity with which Justice Castro spelled out the decisive issue and how to resolve it
to achieve the desirable goal of moral justice in adjudication compels concurrence. I do so. What is
more, there is to my mind a distinct advance in the juridical frontiers in the mode in which the novel
question raised was settled. If the trend manifest in the view taken by the Court would thereafter be
followed, then the protective ramparts the law throws ground victims of vehicular accidents,
unfortunately of rather frequent occurrence here, will be further strengthened. That dissipates
whatever doubts I may have originally felt in view of certain traditional procedural concepts about the
correctness of the decision reached. It is true this is one of those hard cases which, if an old law is to
be believed, may result in bad law. It need not be so, of course, as pointed out with great
persuasiveness in the 1971 inaugural lecture at Oxford given by Professor Ronald Dworkin, the
successor in the chair of jurisprudence to one of the most eminent men in the field H.L.A. Hart.1 The
more accurate way of viewing the matter is that whenever there is an apparent gap in the law and
settled principles of adjudication may not clearly indicate the answer, then a judge may rely either on
an argument of policy or an argument of principle, the former having kinship with the sociological
school of jurisprudence and the latter with the analytical. As I hope I may be able to indicate in this
brief concurrence, the decision reached by us is in consonance with either approach. With the
natural law thinking manifest in the opinion of the Court, witness its stress on moral justice, I am
comforted by the reflection that the procedural barrier is not insurmountable, the decision reached
deriving support from the viewpoint of law as logic, justice, or social control.

1. Dworkin identifies a matter of principle from the standpoint of a right either granted or recognized
by law. As was so clearly pointed out in the opinion of Justice Castro: "It would appear that a plain
reading, on its face, of the judgment in criminal case 1158-O, particularly its decretal portion, easily
results in the same conclusion reached by the court a quo: that the said judgment assessed no civil
liability arising from the offense charged against Punzalan. However, a careful study of the judgment
in question, the situation to which it applies, and the attendant circumstances, would yield the
conclusion that the court a quo, on the contrary, recognized the enforceable right of the Paduas to
the civil liability arising from the offense committed by Punzalan and awarded the corresponding
indemnity therefor."2 There is much to be said therefor for the view expressed therein that "it cannot
reasonably be contended that the court a quo intended, in its judgment in criminal case 1158-O, to
omit recognition of the right of the Paduas to the civil liability arising from the offense of which
Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor.
Surely, it cannot be said that the court intended the statement in the decretal portion of the judgment
in criminal case 1158-O referring to the determination and assessment of Punzalan's civil liability in
civil case 427-O to be pure jargon or 'gobbledygook' and to be absolutely of no meaning and effect
whatsoever. The substance of such statement, taken in the light of the situation to which it applies
and the attendant circumstances, makes unmistakably clear the intention of the court to accord
affirmation to the Padua's right to the civil liability arising from the judgment against Punzalan in
criminal case 1158-O."3 Whatever misgivings therefore may be felt because in the civil case No. 427-
O the complaint against Bay Taxi Cab Co. is dismissed, do not suffice, to my mind, to render
nugatory the admitted subsidiary liability arising from a decision in criminal case No. 1158-O which is
necessarily attendant upon the conviction of the driver, Romeo N. Punzalan. Such a difficulty could
have been avoided had greater care been exercised by the lower court, but precisely recourse may
be had to our corrective powers to avoid a right granted in law from being rendered illusory in fact.

2. There is thus the strongest policy consideration that buttresses the conclusion reached by us. It
would conduce to less respect for the law as an agency of social control if there be recognition in the
codes of the right of next kin to damages arising from the tragic occurrence of young lives being
snuffed out due to reckless driving on the part of what had been accurately described as dealers of
death on the road and then by lack of care on the part of a judge assure that it is nothing more than
a barren form of words. This is what Dean Pound referred to as law in books as distinguished from
law in action. To recall an expression from Justice Jackson, it is comparable to a munificent bequest
in a pauper's will. It is less than realistic to assert that anyway the guilty driver can be made to pay.
The obvious answer is:' With what?"

This is not to deny that a previous judgment that certainly lends itself to ambiguity considering the
facts disclosed and found by the trial court does interpose juristic difficulty to the imposition of liability
on the offending taxicab company. There can be no blinking the fact though that if it did not place
such vehicles on the road driven in such a reckless and culpable manner resulting in a ten-year old
boy being hurled about forty meters away from the point of impact, this tragedy could have been
avoided. To say now that doubts engendered by the previous ruling in the culpa aquiliana suit could
nullify what the law decrees as to the subsidiary liability of the employer in the criminal case finding
the accused guilty would be fraught with pernicious consequences. The party just as much
responsible for the mishap, with his operation of the transportation service, would be absolved from
liability. It need not be so, but certainly for entrepreneurs more enterprising than careful, not
excessively concerned with the safety of the traveling public, it could be a green light for less
vigilance over the conduct of their drivers. The resulting injury to public safety is not hard to imagine.
Moreover, from the standpoint of the feelings of the bereaved parents, and this is just as important a
policy consideration, I feel that no avenue should be left unexplored to mitigate the harshness of
fate. To paraphrase Justice Malcolm, there is not enough money in the entire world to compensate
the parents for the loss of their child.4 To repeat, the decision reached has my full concurrence.

BARREDO, J., concurring:

On strictly legal considerations, it would seem possible to dismiss the petition for review in this case.
But there are certain considerations of equity and substantial justice obviously underlying the cause
of petitioners which I find difficult to ignore. It would be unfair and unjust to deprive said petitioners of
their right to damages for the death of their child unquestionably caused by the fault of respondent's
employee merely because the dispositive portion of the decision of Judge Amores in the criminal
case appears to be rather equivocal on its face as to respondent's liability therefor, albeit under the
incontrovertible facts extant in the record such liability is indisputable in law and the language of
Judge Amores' judgment does not anyway exonerate either respondent's driver or private
respondent, and what is more, does not exclude the idea that, as explained in the able main opinion
of Mr. Justice Castro, the judge intended to merely adopt and incorporate in said judgment the
assessment of amount of damages which said judge himself had already made in the civil case he
had previously decided. It is on these fundamental considerations that I base my concurrence in the
judgment in this case.

As I have already indicated, from the standpoint of strict adjective law, the petition should be
dismissed because in truth, there is yet no showing that any attempt has been made by petitioners
to have the judgment in the criminal cases, assuming it includes an imposition of civil liability upon
the accused driver, Romeo N. Punzalan, executed. What appears in the record is that it was the writ
of execution issued against said Punzalan in the previous civil case that was returned unsatisfied. Of
course, this point is highly technical, because all that has to be done is for petitioners to have
another execution in the criminal case, which it can even now be forseen will have exactly the same
result. I am therefore agreeable as a matter of equity that the Court hold that for all legal intents and
purposes, We may consider the return of insolvency of Punzalan in the civil case as in effect the
return in the criminal case, since equity considers as done what ought to have been done when
otherwise injustice would result. And so, the paramount question arises, was there any civil liability
to impose in the criminal judgment of Judge Amores? As related in the main opinion, the judgment of
October 27, 1969 in the civil case ordered Punzalan "to pay plaintiffs (herein petitioners) the sums of
P12,000.00 as actual damages P5,000.00 as moral and exemplary damages, and P10,000.00 as
attorney's fees," although absolving at the same time the herein private respondent, and then, on
October 5, 1970, the judgment in the criminal case was as follows:

WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty
beyond reasonable doubt of the crime of homicide through reckless imprudence, as
defined and penalized under Article 365 of the Revised Penal Code, attended by the
mitigating circumstance of voluntary surrender, and hereby sentences him to suffer
the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
 DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of
prision mayor, as maximum, and to pay the costs. The civil liability of the accused
has already been determined and assessed in Civil Case No. 427-O, entitled 'Paulino
Padua, et al. vs. Romeo Punzalan, et al. (Emphasis supplied)

Succintly, the decisive issue presented to Us now is whether this judgment just transcribed imposes
upon Punzalan a civil liability by adoption by reference of the civil liability already a judged in the civil
case or it exonerates him from any civil liability arising from the offense of which he has been found
guilty inasmuch as he was already found civilly liable in the civil case. It must be admitted in candor
that both constructions are literally tenable, with the particularity, however, that the first
interpretation, if adopted could not involve the assumption that the judge committed a grievous and
palpable error of law whereas the second would necessarily mean that he did.

It is by now settled beyond all cavil as to dispense with the citation of jurisprudence, that a negligent
act such as that committed by Punzalan gives rise to at least two separate and independent kinds of
liabilities, (1) the civil liability arising from crime or culpa criminal and (2) the liability arising from civil
negligence or the so-called culpa aquiliana. These two concepts of fault are so distinct from each
other that exoneration from one does not result in exoneration from the other. Adjectively and
substantively, they can be prosecuted separately and independently of each other, although Article
2177 of the Civil Code precludes recovery of damages twice for the same negligent act or omission,
which means that should there be varying amounts awarded in two separate cases, the plaintiff may
recover, in effect, only the bigger amount. That is to say, if the plaintiff has already been ordered
paid an amount in one case and in the other case the amount adjudged is bigger, he shall be entitled
in the second case only to the excess over the one fixed in the first case, but if he has already been
paid a bigger amount in the first case, he may not recover anymore in the second case. Thus, in the
case at bar, inasmuch as Punzalan had already been sentenced to pay the herein petitioners the
amounts above-stated, in the subsequent criminal case, he could not be adjudged to pay a higher
amount.

Now, under Article 100 of the Revised Penal Code, a person criminally liable is also civilly liable,
hence, the judgment in the criminal case is supposed to include the imposition of civil liability, unless
the basis therefor has been shown not to exist, which is not the case here. And since the judgment
in question says that "the civil liability of the accused has already been determined and assessed in
Civil Case No. 427-O entitled Paulino Padua et al. vs. Romeo Punzalan et al.," it is but logical to
conclude that the meaning of such statement is that the same amounts of damages fixed in the
previous case were being awarded to the offended party in the criminal case. Otherwise, We would
have to indulge in the assumption that Judge Amores committed the grievous and palpable error of
law of exonerating Punzalan of all civil liabilities in the criminal case just because he had already
been sentenced to pay damages in the civil case. I am not ready to accept such assumption. The
law and jurisprudence on the matter are so clear and well-settled that I refuse to believe that a judge
of the experience of Judge Amores would not be cognizant thereof. Besides, Judge Amores knew or
ought to have known that having absolved herein respondent in the civil case, the only possible
recourse has left to petitioners to recover from said respondent damages for the death of their child
caused by the indisputable negligence of his employee Punzalan is in the form of the subsidiary
liability of the employer under the Penal Code. Indeed, I cannot believe that Judge Amores intended
to allow respondent to escape liability altogether, it being evident under the circumstances which he
himself has found in both cases, civil and criminal, that Punzalan, their employee, had cause the
death of the ten-year-old child of petitioners thru reckless imprudence and that in such a situation in
the law exacts liability from both the employee and the employer. What is more, I consider it but
equitable to hold that the rather equivocal phraseology of the decision of Judge Amores should be
read in the sense it was understood by the petitioners, who in the faith and reliance that the law had
been complied with by Judge Amores and that he had accordingly awarded them in the criminal
case the civil liability that by law goes with it, did not anymore move for clarification or
reconsideration nor appeal from said decision. My understanding is that the filing of the subject civil
action by petitioners proceeded from that assumption, namely, that Punzalan has been found civilly
liable for the same amounts adjudged in the civil case and, therefore, respondent is subsidiarily
liable therefor in the face of Punzalan's insolvency.

Accordingly, I concur in that the order of dismissal of respondent judge should be set aside and that
petitioners' action should be tried on the merits.

Separate Opinions

FERNANDO, J., concurring:

The clarity and lucidity with which Justice Castro spelled out the decisive issue and how to resolve it
to achieve the desirable goal of moral justice in adjudication compels concurrence. I do so. What is
more, there is to my mind a distinct advance in the juridical frontiers in the mode in which the novel
question raised was settled. If the trend manifest in the view taken by the Court would thereafter be
followed, then the protective ramparts the law throws ground victims of vehicular accidents,
unfortunately of rather frequent occurrence here, will be further strengthened. That dissipates
whatever doubts I may have originally felt in view of certain traditional procedural concepts about the
correctness of the decision reached. It is true this is one of those hard cases which, if an old law is to
be believed, may result in bad law. It need not be so, of course, as pointed out with great
persuasiveness in the 1971 inaugural lecture at Oxford given by Professor Ronald Dworkin, the
successor in the chair of jurisprudence to one of the most eminent men in the field H.L.A. Hart.1 The
more accurate way of viewing the matter is that whenever there is an apparent gap in the law and
settled principles of adjudication may not clearly indicate the answer, then a judge may rely either on
an argument of policy or an argument of principle, the former having kinship with the sociological
school of jurisprudence and the latter with the analytical. As I hope I may be able to indicate in this
brief concurrence, the decision reached by us is in consonance with either approach. With the
natural law thinking manifest in the opinion of the Court, witness its stress on moral justice, I am
comforted by the reflection that the procedural barrier is not insurmountable, the decision reached
deriving support from the viewpoint of law as logic, justice, or social control.

1. Dworkin identifies a matter of principle from the standpoint of a right either granted or recognized
by law. As was so clearly pointed out in the opinion of Justice Castro: "It would appear that a plain
reading, on its face, of the judgment in criminal case 1158-O, particularly its decretal portion, easily
results in the same conclusion reached by the court a quo: that the said judgment assessed no civil
liability arising from the offense charged against Punzalan. However, a careful study of the judgment
in question, the situation to which it applies, and the attendant circumstances, would yield the
conclusion that the court a quo, on the contrary, recognized the enforceable right of the Paduas to
the civil liability arising from the offense committed by Punzalan and awarded the corresponding
indemnity therefor."2 There is much to be said therefor for the view expressed therein that "it cannot
reasonably be contended that the court a quo intended, in its judgment in criminal case 1158-O, to
omit recognition of the right of the Paduas to the civil liability arising from the offense of which
Punzalan was adjudged guilty and the corollary award of the corresponding indemnity therefor.
Surely, it cannot be said that the court intended the statement in the decretal portion of the judgment
in criminal case 1158-O referring to the determination and assessment of Punzalan's civil liability in
civil case 427-O to be pure jargon or 'gobbledygook' and to be absolutely of no meaning and effect
whatsoever. The substance of such statement, taken in the light of the situation to which it applies
and the attendant circumstances, makes unmistakably clear the intention of the court to accord
affirmation to the Padua's right to the civil liability arising from the judgment against Punzalan in
criminal case 1158-O."3 Whatever misgivings therefore may be felt because in the civil case No. 427-
O the complaint against Bay Taxi Cab Co. is dismissed, do not suffice, to my mind, to render
nugatory the admitted subsidiary liability arising from a decision in criminal case No. 1158-O which is
necessarily attendant upon the conviction of the driver, Romeo N. Punzalan. Such a difficulty could
have been avoided had greater care been exercised by the lower court, but precisely recourse may
be had to our corrective powers to avoid a right granted in law from being rendered illusory in fact.

2. There is thus the strongest policy consideration that buttresses the conclusion reached by us. It
would conduce to less respect for the law as an agency of social control if there be recognition in the
codes of the right of next kin to damages arising from the tragic occurrence of young lives being
snuffed out due to reckless driving on the part of what had been accurately described as dealers of
death on the road and then by lack of care on the part of a judge assure that it is nothing more than
a barren form of words. This is what Dean Pound referred to as law in books as distinguished from
law in action. To recall an expression from Justice Jackson, it is comparable to a munificent bequest
in a pauper's will. It is less than realistic to assert that anyway the guilty driver can be made to pay.
The obvious answer is:' With what?"

This is not to deny that a previous judgment that certainly lends itself to ambiguity considering the
facts disclosed and found by the trial court does interpose juristic difficulty to the imposition of liability
on the offending taxicab company. There can be no blinking the fact though that if it did not place
such vehicles on the road driven in such a reckless and culpable manner resulting in a ten-year old
boy being hurled about forty meters away from the point of impact, this tragedy could have been
avoided. To say now that doubts engendered by the previous ruling in the culpa aquiliana suit could
nullify what the law decrees as to the subsidiary liability of the employer in the criminal case finding
the accused guilty would be fraught with pernicious consequences. The party just as much
responsible for the mishap, with his operation of the transportation service, would be absolved from
liability. It need not be so, but certainly for entrepreneurs more enterprising than careful, not
excessively concerned with the safety of the traveling public, it could be a green light for less
vigilance over the conduct of their drivers. The resulting injury to public safety is not hard to imagine.
Moreover, from the standpoint of the feelings of the bereaved parents, and this is just as important a
policy consideration, I feel that no avenue should be left unexplored to mitigate the harshness of
fate. To paraphrase Justice Malcolm, there is not enough money in the entire world to compensate
the parents for the loss of their child.4 To repeat, the decision reached has my full concurrence.

BARREDO, J., concurring:

On strictly legal considerations, it would seem possible to dismiss the petition for review in this case.
But there are certain considerations of equity and substantial justice obviously underlying the cause
of petitioners which I find difficult to ignore. It would be unfair and unjust to deprive said petitioners of
their right to damages for the death of their child unquestionably caused by the fault of respondent's
employee merely because the dispositive portion of the decision of Judge Amores in the criminal
case appears to be rather equivocal on its face as to respondent's liability therefor, albeit under the
incontrovertible facts extant in the record such liability is indisputable in law and the language of
Judge Amores' judgment does not anyway exonerate either respondent's driver or private
respondent, and what is more, does not exclude the idea that, as explained in the able main opinion
of Mr. Justice Castro, the judge intended to merely adopt and incorporate in said judgment the
assessment of amount of damages which said judge himself had already made in the civil case he
had previously decided. It is on these fundamental considerations that I base my concurrence in the
judgment in this case.
As I have already indicated, from the standpoint of strict adjective law, the petition should be
dismissed because in truth, there is yet no showing that any attempt has been made by petitioners
to have the judgment in the criminal cases, assuming it includes an imposition of civil liability upon
the accused driver, Romeo N. Punzalan, executed. What appears in the record is that it was the writ
of execution issued against said Punzalan in the previous civil case that was returned unsatisfied. Of
course, this point is highly technical, because all that has to be done is for petitioners to have
another execution in the criminal case, which it can even now be forseen will have exactly the same
result. I am therefore agreeable as a matter of equity that the Court hold that for all legal intents and
purposes, We may consider the return of insolvency of Punzalan in the civil case as in effect the
return in the criminal case, since equity considers as done what ought to have been done when
otherwise injustice would result. And so, the paramount question arises, was there any civil liability
to impose in the criminal judgment of Judge Amores? As related in the main opinion, the judgment of
October 27, 1969 in the civil case ordered Punzalan "to pay plaintiffs (herein petitioners) the sums of
P12,000.00 as actual damages P5,000.00 as moral and exemplary damages, and P10,000.00 as
attorney's fees," although absolving at the same time the herein private respondent, and then, on
October 5, 1970, the judgment in the criminal case was as follows:

WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty
beyond reasonable doubt of the crime of homicide through reckless imprudence, as
defined and penalized under Article 365 of the Revised Penal Code, attended by the
mitigating circumstance of voluntary surrender, and hereby sentences him to suffer
the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of
prision mayor, as maximum, and to pay the costs. The civil liability of the accused
has already been determined and assessed in Civil Case No. 427-O, entitled 'Paulino
Padua, et al. vs. Romeo Punzalan, et al. (Emphasis supplied)

Succintly, the decisive issue presented to Us now is whether this judgment just transcribed imposes
upon Punzalan a civil liability by adoption by reference of the civil liability already a judged in the civil
case or it exonerates him from any civil liability arising from the offense of which he has been found
guilty inasmuch as he was already found civilly liable in the civil case. It must be admitted in candor
that both constructions are literally tenable, with the particularity, however, that the first
interpretation, if adopted could not involve the assumption that the judge committed a grievous and
palpable error of law whereas the second would necessarily mean that he did.

It is by now settled beyond all cavil as to dispense with the citation of jurisprudence, that a negligent
act such as that committed by Punzalan gives rise to at least two separate and independent kinds of
liabilities, (1) the civil liability arising from crime or culpa criminal and (2) the liability arising from civil
negligence or the so-called culpa aquiliana. These two concepts of fault are so distinct from each
other that exoneration from one does not result in exoneration from the other. Adjectively and
substantively, they can be prosecuted separately and independently of each other, although Article
2177 of the Civil Code precludes recovery of damages twice for the same negligent act or omission,
which means that should there be varying amounts awarded in two separate cases, the plaintiff may
recover, in effect, only the bigger amount. That is to say, if the plaintiff has already been ordered
paid an amount in one case and in the other case the amount adjudged is bigger, he shall be entitled
in the second case only to the excess over the one fixed in the first case, but if he has already been
paid a bigger amount in the first case, he may not recover anymore in the second case. Thus, in the
case at bar, inasmuch as Punzalan had already been sentenced to pay the herein petitioners the
amounts above-stated, in the subsequent criminal case, he could not be adjudged to pay a higher
amount.

Now, under Article 100 of the Revised Penal Code, a person criminally liable is also civilly liable,
hence, the judgment in the criminal case is supposed to include the imposition of civil liability, unless
the basis therefor has been shown not to exist, which is not the case here. And since the judgment
in question says that "the civil liability of the accused has already been determined and assessed in
Civil Case No. 427-O entitled Paulino Padua et al. vs. Romeo Punzalan et al.," it is but logical to
conclude that the meaning of such statement is that the same amounts of damages fixed in the
previous case were being awarded to the offended party in the criminal case. Otherwise, We would
have to indulge in the assumption that Judge Amores committed the grievous and palpable error of
law of exonerating Punzalan of all civil liabilities in the criminal case just because he had already
been sentenced to pay damages in the civil case. I am not ready to accept such assumption. The
law and jurisprudence on the matter are so clear and well-settled that I refuse to believe that a judge
of the experience of Judge Amores would not be cognizant thereof. Besides, Judge Amores knew or
ought to have known that having absolved herein respondent in the civil case, the only possible
recourse has left to petitioners to recover from said respondent damages for the death of their child
caused by the indisputable negligence of his employee Punzalan is in the form of the subsidiary
liability of the employer under the Penal Code. Indeed, I cannot believe that Judge Amores intended
to allow respondent to escape liability altogether, it being evident under the circumstances which he
himself has found in both cases, civil and criminal, that Punzalan, their employee, had cause the
death of the ten-year-old child of petitioners thru reckless imprudence and that in such a situation in
the law exacts liability from both the employee and the employer. What is more, I consider it but
equitable to hold that the rather equivocal phraseology of the decision of Judge Amores should be
read in the sense it was understood by the petitioners, who in the faith and reliance that the law had
been complied with by Judge Amores and that he had accordingly awarded them in the criminal
case the civil liability that by law goes with it, did not anymore move for clarification or
reconsideration nor appeal from said decision. My understanding is that the filing of the subject civil
action by petitioners proceeded from that assumption, namely, that Punzalan has been found civilly
liable for the same amounts adjudged in the civil case and, therefore, respondent is subsidiarily
liable therefor in the face of Punzalan's insolvency.

Accordingly, I concur in that the order of dismissal of respondent judge should be set aside and that
petitioners' action should be tried on the merits.

Footnotes

* Judge Augusto M. Amores.

1 Dworkin, Hard Cases, 88 Harv. Law Review 1057 (1975).

2 Padua v. Robles, L-40486.

3 Ibid.

4 Cf. Bernal v. House, 54 Phil. 327 (1930).

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major
General Josephus Q. Ramas and Elizabeth
Dimaano, respondents.

DECISION
CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside
the Resolutions of the Sandiganbayan (First Division) dated 18 November
[1]

1991 and 25 March 1992 in Civil Case No. 0037. The first Resolution
dismissed petitioners Amended Complaint and ordered the return of the
confiscated items to respondent Elizabeth Dimaano, while the second
Resolution denied petitioners Motion for Reconsideration. Petitioner prays for
the grant of the reliefs sought in its Amended Complaint, or in the alternative,
for the remand of this case to the Sandiganbayan (First Division) for further
proceedings allowing petitioner to complete the presentation of its evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA

Revolution, then President Corazon C. Aquino issued Executive Order No. 1
(EO No. 1) creating the Presidential Commission on Good Government
(PCGG). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth
of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the
power (a) to conduct investigation as may be necessary in order to
accomplish and carry out the purposes of this order and the power (h) to
promulgate such rules and regulations as may be necessary to carry out the
purpose of this order. Accordingly, the PCGG, through its then Chairman
Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to
investigate reports of unexplained wealth and corrupt practices by AFP
personnel, whether in the active service or retired.
[2]

Based on its mandate, the AFP Board investigated various reports of

alleged unexplained wealth of respondent Major General Josephus Q. Ramas
(Ramas). On 27 July 1987, the AFP Board issued a Resolution on its findings
and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located
at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and lot
located in Cebu City. The lot has an area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly
at P700,000.00.

The equipment/items and communication facilities which were found in the premises
of Elizabeth Dimaano and were confiscated by elements of the PC Command of
Batangas were all covered by invoice receipt in the name of CAPT. EFREN SALIDO,
RSO Command Coy, MSC, PA. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent Commanding General of the
Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding
team was also able to confiscate money in the amount of P2,870,000.00 and $50,000
US Dollars in the house of Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command,

Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth.Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna,
the existence and ownership of these money would have never been known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny
and analysis by the Boards consultant. Although the amount of P2,870,000.00 and
$50,000 US Dollars were not included, still it was disclosed that respondent has an
unexplained wealth of P104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of P2,974,134.00 and
$50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted

and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property. [3]

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under
Republic Act No. 1379 (RA No. 1379) against Ramas.
[4]

Before Ramas could answer the petition, then Solicitor General Francisco
I. Chavez filed an Amended Complaint naming the Republic of the Philippines
(petitioner), represented by the PCGG, as plaintiff and Ramas as
defendant. The Amended Complaint also impleaded Elizabeth Dimaano
(Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding
General of the Philippine Army until 1986. On the other hand, Dimaano was a
confidential agent of the Military Security Unit, Philippine Army, assigned as a
clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas acquired funds, assets and
properties manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue advantage
of his public office and/or using his power, authority and influence as such
officer of the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos. [5]
 The Amended Complaint also alleged that the AFP Board, after a previous
inquiry, found reasonable ground to believe that respondents have violated
RA No. 1379. The Amended Complaint prayed for, among others, the
[6]

forfeiture of respondents properties, funds and equipment in favor of the

State.
Ramas filed an Answer with Special and/or Affirmative Defenses and
Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas
contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of
proportion to his salary and other legitimate income. He denied ownership of
any mansion in Cebu City and the cash, communications equipment and other
items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from January-November
1978 only, Dimaano claimed ownership of the monies, communications
equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.
After termination of the pre-trial, the court set the case for trial on the
[7]

merits on 9-11 November 1988.

On 9 November 1988, petitioner asked for a deferment of the hearing due
to its lack of preparation for trial and the absence of witnesses and vital
documents to support its case. The court reset the hearing to 17 and 18 April
1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order to charge the delinquent properties with being subject to
forfeiture as having been unlawfully acquired by defendant Dimaano alone x x
x.
[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan

proceeded with petitioners presentation of evidence on the ground that the
motion for leave to amend complaint did not state when petitioner would file
the amended complaint. The Sandiganbayan further stated that the subject
matter of the amended complaint was on its face vague and not related to the
existing complaint. The Sandiganbayan also held that due to the time that the
case had been pending in court, petitioner should proceed to present its
evidence.
After presenting only three witnesses, petitioner asked for a postponement
of the trial.
 On 28 September 1989, during the continuation of the trial, petitioner
manifested its inability to proceed to trial because of the absence of other
witnesses or lack of further evidence to present. Instead, petitioner reiterated
its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for
over a year mainly because of its many postponements. Moreover, petitioner
would want the case to revert to its preliminary stage when in fact the case
had long been ready for trial. The Sandiganbayan ordered petitioner to
prepare for presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to
present further evidence. Giving petitioner one more chance to present further
evidence or to amend the complaint to conform to its evidence, the
Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however,
hinted that the re-setting was without prejudice to any action that private
respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to
proceed to trial because it had no further evidence to present. Again, in the
interest of justice, the Sandiganbayan granted petitioner 60 days within which
to file an appropriate pleading. The Sandiganbayan, however, warned
petitioner that failure to act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic
v. Migrino. The Court held in Migrino that the PCGG does not have
[9]

jurisdiction to investigate and prosecute military officers by reason of mere

position held without a showing that they are subordinates of former President
Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the
dispositive portion of which states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,

without pronouncement as to costs. The counterclaims are likewise dismissed for lack
of merit, but the confiscated sum of money, communications equipment, jewelry and
land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman,
who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such
appropriate action as the evidence warrants. This case is also referred to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a
Joint Comment/Opposition to which petitioner filed its Reply on 10 January
1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the
Motion for Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following

grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan and Republic v.
[10]

Migrino which involve the same issues.

[11]

(2.) No previous inquiry similar to preliminary investigations in criminal cases

was conducted against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case
against him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS
WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING
BEEN RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
 B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING
OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.

Migrino, supra, are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in

Civil Case No. 0037 was cured and/or waived by
respondents with the filing of their respective answers with
counterclaim; and

3. The separate motions to dismiss were evidently improper

considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even
before the latter was allowed to formally offer its evidence
and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE

ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.[12]

The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this

Court in Cruz, Jr. v. Sandiganbayan and Republic v. Migrino.
[13] [14]

The primary issue for resolution is whether the PCGG has the jurisdiction
to investigate and cause the filing of a forfeiture petition against Ramas and
Dimaano for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth
and corrupt practices of AFP personnel, whether in the active service or
retired. The PCGG tasked the AFP Board to make the necessary
[15]

recommendations to appropriate government agencies on the action to be

taken based on its findings. The PCGG gave this task to the AFP Board
[16]

pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct

investigation as may be necessary in order to accomplish and to carry out the
purposes of this order. EO No. 1 gave the PCGG specific responsibilities, to
wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President

Ferdinand E. Marcos, his immediate family, relatives, subordinates and
close associates, whether located in the Philippines or abroad,
including the takeover and sequestration of all business enterprises and
entities owned or controlled by them, during his administration,
directly or through nominees, by taking undue advantage of their
public office and/ or using their powers, authority, influence,
connections or relationship.

(b) The investigation of such cases of graft and corruption as the President
may assign to the Commission from time to time.

x x x.
The PCGG, through the AFP Board, can only investigate the unexplained
wealth and corrupt practices of AFP personnel who fall under either of the two
categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel
who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latters immediate family, relative, subordinate
or close associate, taking undue advantage of their public office or using their
powers, influence x x x; or (2) AFP personnel involved in other cases of graft
[17]

and corruption provided the President assigns their cases to the PCGG. [18]

Petitioner, however, does not claim that the President assigned Ramas
case to the PCGG. Therefore, Ramas case should fall under the first category
of AFP personnel before the PCGG could exercise its jurisdiction over
him. Petitioner argues that Ramas was undoubtedly a subordinate of former
President Marcos because of his position as the Commanding General of the
Philippine Army. Petitioner claims that Ramas position enabled him to receive
orders directly from his commander-in-chief, undeniably making him a
subordinate of former President Marcos.
 We hold that Ramas was not a subordinate of former President Marcos in
the sense contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a
subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a
showing that he enjoyed close association with former President
Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term subordinate. The Whereas Clauses of EO No. 1 express
the urgent need to recover the ill-gotten wealth amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close associates both here
and abroad.

EO No. 2 freezes all assets and properties in the Philippines in which former President
Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates,
business associates, dummies, agents, or nominees have any interest or participation.

Applying the rule in statutory construction known as ejusdem generis that is-

[W]here general words follow an enumeration of persons or things by words of a

particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds
of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2ndEd., 203].

[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the immediate
family member, relative, and close associate in EO No. 1 and the close relative,
business associate, dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official
or employee during the administration of former President Marcos. There must be a
prima facie showing that the respondent unlawfully accumulated wealth by virtue
of his close association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)

Ramas position alone as Commanding General of the Philippine Army

with the rank of Major General does not suffice to make him a subordinate of
[19]

former President Marcos for purposes of EO No. 1 and its amendments. The
PCGG has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that business
associates, dummies, agents or nominees of former President Marcos were
close to him. Such close association is manifested either by Ramas complicity
with former President Marcos in the accumulation of ill-gotten wealth by the
deposed President or by former President Marcos acquiescence in Ramas
own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board
Resolution in the instant case states that the AFP Board conducted the
investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No.
1379. Petitioner asserts that there is a presumption that the PCGG was acting
within its jurisdiction of investigating crony-related cases of graft and
corruption and that Ramas was truly a subordinate of the former
President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with
the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted

and tried for violation of RA 3019, as amended, otherwise known as Anti-Graft and
Corrupt Practices Act and RA 1379, as amended, otherwise known as The Act for the
Forfeiture of Unlawfully Acquired Property.
[20]

Thus, although the PCGG sought to investigate and prosecute private

respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of
violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos.
1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments
proves fatal to petitioners case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to
address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended
Complaint do not show that the properties Ramas allegedly owned were
accumulated by him in his capacity as a subordinate of his commander-in-
chief. Petitioner merely enumerated the properties Ramas allegedly owned
and suggested that these properties were disproportionate to his salary and
other legitimate income without showing that Ramas amassed them because
of his close association with former President Marcos. Petitioner, in
fact, admits that the AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close association with former
President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a; (Emphasis supplied)
[21]

Such omission is fatal. Petitioner forgets that it is precisely a prima

facie showing that the ill-gotten wealth was accumulated by a subordinate of
former President Marcos that vests jurisdiction on PCGG. EO No. 1 clearly [22]

premises the creation of the PCGG on the urgent need to recover all ill-gotten
wealth amassed by former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such omission was
not fatal is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan, the Court outlined the cases that fall
[23]

under the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 14, 14-A: [24] [25] [26]

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-
gotten wealth under Republic Act No. 1379, accumulated by former
President Marcos, his immediate family, relatives, subordinates and
close associates, whether located in the Philippines or abroad, including
the take-over or sequestration of all business enterprises and entities
owned or controlled by them, during his administration, directly or
through his nominees, by taking undue advantage of their public
office and/or using their powers, authority and influence,
connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the

acquisition of said ill-gotten wealth as contemplated under Section 2(a)
of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate
and prosecute forfeiture petitions not falling under EO No. 1 and its
amendments. The preliminary investigation of unexplained wealth amassed
on or before 25 February 1986 falls under the jurisdiction of the Ombudsman,
while the authority to file the corresponding forfeiture petition rests with the
Solicitor General. The Ombudsman Act or Republic Act No. 6770 (RA No.
[27]

6770) vests in the Ombudsman the power to conduct preliminary investigation

and to file forfeiture proceedings involving unexplained wealth amassed after
25 February 1986. [28]

After the pronouncements of the Court in Cruz, the PCGG still pursued
this case despite the absence of a prima facie finding that Ramas was a
subordinate of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board Resolution and
even the Amended Complaint state that there are violations of RA Nos. 3019
and 1379. Thus, the PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the
PCGG must also be enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The rule of law mandates
that an agency of government be allowed to exercise only the powers granted to it.

Petitioners argument that private respondents have waived any defect in

the filing of the forfeiture petition by submitting their respective Answers with
counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no
jurisdiction to waive in the first place. The PCGG cannot exercise investigative
or prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole
task is only to recover the ill-gotten wealth of the Marcoses, their relatives and
cronies. Without these elements, the PCGG cannot claim jurisdiction over a
[29]

case.
Private respondents questioned the authority and jurisdiction of the PCGG
to investigate and prosecute their cases by filing their Motion to Dismiss as
soon as they learned of the pronouncement of the Court in Migrino. This case
was decided on 30 August 1990, which explains why private respondents only
filed their Motion to Dismiss on 8 October 1990.Nevertheless, we have held
that the parties may raise lack of jurisdiction at any stage of the
proceeding. Thus, we hold that there was no waiver of jurisdiction in this
[30]

case. Jurisdiction is vested by law and not by the parties to an action.[31]

Consequently, the petition should be dismissed for lack of jurisdiction by

the PCGG to conduct the preliminary investigation. The Ombudsman may still
conduct the proper preliminary investigation for violation of RA No. 1379, and
if warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan. The right of the State to forfeit unexplained wealth under
[32]

RA No. 1379 is not subject to prescription, laches or estoppel. [33]

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the

case before completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case,
we find that petitioner has only itself to blame for non-completion of the
presentation of its evidence. First, this case has been pending for four years
before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11 August 1987, and only began to
present its evidence on 17 April 1989. Petitioner had almost two years to
prepare its evidence. However, despite this sufficient time, petitioner still
delayed the presentation of the rest of its evidence by filing numerous motions
for postponements and extensions. Even before the date set for the
presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for
Leave to Amend the Complaint. The motion sought to charge the delinquent
[34]

properties (which comprise most of petitioners evidence) with being subject to

forfeiture as having been unlawfully acquired by defendant Dimaano alone x x
x.
The Sandiganbayan, however, refused to defer the presentation of
petitioners evidence since petitioner did not state when it would file the
amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and 9-11
October 1989, giving petitioner ample time to prepare its evidence. Still, on 28
September 1989, petitioner manifested its inability to proceed with the
presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay hereon
has been due to the inability of the government to produce on scheduled dates for pre-
trial and for trial documents and witnesses, allegedly upon the failure of the military
to supply them for the preparation of the presentation of evidence thereon. Of equal
interest is the fact that this Court has been held to task in public about its alleged
failure to move cases such as this one beyond the preliminary stage, when, in view of
the developments such as those of today, this Court is now faced with a situation
where a case already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been undertaken by the
plaintiff Republic.
[35]

On 9 October 1989, the PCGG manifested in court that it was conducting

a preliminary investigation on the unexplained wealth of private respondents
as mandated by RA No. 1379. The PCGG prayed for an additional four
[36]

months to conduct the preliminary investigation. The Sandiganbayan granted

this request and scheduled the presentation of evidence on 26-29 March
1990. However, on the scheduled date, petitioner failed to inform the court of
the result of the preliminary investigation the PCGG supposedly conducted.
Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with
the presentation of its evidence and to inform the court of what lies ahead
insofar as the status of the case is concerned x x x. Still on the date set,
[37]

petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner

filed its Re-Amended Complaint. The Sandiganbayan correctly observed that
[38]

a case already pending for years would revert to its preliminary stage if the
court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to
blame for failure to complete the presentation of its evidence. The
Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioners
delays and yet petitioner ended the long-string of delays with the filing of a
Re-Amended Complaint, which would only prolong even more the disposition
of the case.
Moreover, the pronouncements of the Court
in Migrino and Cruz prompted the Sandiganbayan to dismiss the case since
the PCGG has no jurisdiction to investigate and prosecute the case against
private respondents. This alone would have been sufficient legal basis for the
Sandiganbayan to dismiss the forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case
before completion of the presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties

confiscated from Dimaanos house as illegally seized and therefore
inadmissible in evidence. This issue bears a significant effect on petitioners
case since these properties comprise most of petitioners evidence against
private respondents. Petitioner will not have much evidence to support its
case against private respondents if these properties are inadmissible in
evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos
residence a search warrant captioned Illegal Possession of Firearms and
Ammunition. Dimaano was not present during the raid but Dimaanos cousins
witnessed the raid. The raiding team seized the items detailed in the seizure
receipt together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two magazines;
40 rounds of 5.56 ammunition; one pistol, caliber .45; communications
equipment, cash consisting of P2,870,000 and US$50,000, jewelry, and land
titles.
Petitioner wants the Court to take judicial notice that the raiding team
conducted the search and seizure on March 3, 1986 or five days after the
successful EDSA revolution. Petitioner argues that a revolutionary
[39]

government was operative at that time by virtue of Proclamation No. 1

announcing that President Aquino and Vice President Laurel were taking
power in the name and by the will of the Filipino people. Petitioner asserts
[40]

that the revolutionary government effectively withheld the operation of the

1973 Constitution which guaranteed private respondents exclusionary right.
 Moreover, petitioner argues that the exclusionary right arising from an
illegal search applies only beginning 2 February 1987, the date of ratification
of the 1987 Constitution. Petitioner contends that all rights under the Bill of
Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their
seizure, private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly
stated in President Aquinos Proclamation No. 3 dated 25 March 1986, the
EDSA Revolution was done in defiance of the provisions of the 1973
Constitution. The resulting government was indisputably a revolutionary
[41]

government bound by no constitution or legal limitations except treaty

obligations that the revolutionary government, as the de jure government in
the Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government was
bound by the Bill of Rights of the 1973 Constitution during the interregnum,
that is, after the actual and effective take-over of power by the revolutionary
government following the cessation of resistance by loyalist forces up to 24
March 1986 (immediately before the adoption of the Provisional Constitution);
and (2) whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights (Covenant) and the Universal
Declaration of Human Rights (Declaration) remained in effect during the
interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not
operative during the interregnum. However, we rule that the protection
accorded to individuals under the Covenant and the Declaration remained in
effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary
government were the supreme law because no constitution limited the extent
and scope of such directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during
the interregnum, a person could not invoke any exclusionary right under a Bill
of Rights because there was neither a constitution nor a Bill of Rights during
the interregnum. As the Court explained in Letter of Associate Justice
Reynato S. Puno: [42]
A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it or as a
sudden, radical and fundamental change in the government or political system, usually
effected with violence or at least some acts of violence. In Kelsen's book, General
Theory of Law and State, it is defined as that which occurs whenever the legal order
of a community is nullified and replaced by a new order . . . a way not prescribed by
the first order itself.

It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the people power revolution that the Filipino people tore
themselves away from an existing regime. This revolution also saw the unprecedented
rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising
when the legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable. It has been said that the locus of
positive law-making power lies with the people of the state and from there is derived
the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.

xxx

It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of the
1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr.
Marcos as the winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little resistance and her
control of the state evidenced by the appointment of the Cabinet and other key officers
of the administration, the departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal system then in effect,
had ceased to be obeyed by the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration orders
issued by the Philippine Commission on Good Government (PCGG) before
the adoption of the Freedom Constitution. The sequestration orders, which
direct the freezing and even the take-over of private property by mere
executive issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.
 During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the
adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government, petitioner Baseco, while conceding
[43]

there was no Bill of Rights during the interregnum, questioned the continued
validity of the sequestration orders upon adoption of the Freedom Constitution
in view of the due process clause in its Bill of Rights. The Court ruled that the
Freedom Constitution, and later the 1987 Constitution, expressly
recognized the validity of sequestration orders, thus:

If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or Freedom Constitution recognizes the power and duty of
the President to enact measures to achieve the mandate of the people to . . . (r)ecover
ill-gotten properties amassed by the leaders and supporters of the previous regime and
protect the interest of the people through orders of sequestration or freezing of assets
or accounts. And as also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986.

The framers of both the Freedom Constitution and the 1987 Constitution
were fully aware that the sequestration orders would clash with the Bill of
Rights. Thus, the framers of both constitutions had to include specific
language recognizing the validity of the sequestration orders. The following
discourse by Commissioner Joaquin G. Bernas during the deliberations of the
Constitutional Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the

arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the
Gregorio Araneta University Foundation, of which all of us have been given a
copy. On the one hand, he argues that everything the Commission is doing is
traditionally legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that argument. On
the other hand, almost as an afterthought, he says that in the end what matters
are the results and not the legal niceties, thus suggesting that the PCGG
should be allowed to make some legal shortcuts, another word for niceties or
exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM
for special protection? The answer is clear. What they are doing will not
stand the test of ordinary due process, hence they are asking for protection,
for exceptions. Grandes malos, grandes remedios, fine, as the saying stands,
but let us not say grandes malos, grande y malos remedios. That is not an
allowable extrapolation. Hence, we should not give the exceptions asked for,
and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the heart of
the constitutional normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and at the same
time ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word
for that is backsliding. It is tragic when we begin to backslide even before we
get there.
Second, this is really a corollary of the first. Habits tend to become ingrained.
The committee report asks for extraordinary exceptions from the Bill of
Rights for six months after the convening of Congress, and Congress may
even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What
the committee report is asking for is that we should allow the new government
to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested right to its
practice, and they will fight tooth and nail to keep the franchise. That would
be an unhealthy way of consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties
is an argument that is very disturbing. When it comes from a staunch
Christian like Commissioner Salonga, a Minister, and repeated verbatim by
another staunch Christian like Commissioner Tingson, it becomes doubly
disturbing and even discombobulating. The argument makes the PCGG an
auctioneer, placing the Bill of Rights on the auction block. If the price is right,
the search and seizure clause will be sold. Open your Swiss bank account to
us and we will award you the search and seizure clause. You can keep it in
your private safe.
 Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the
ransom price is paid and the ransom price is the Bill of Rights, specifically the
due process in the search and seizure clauses. So, there is something
positively revolving about either argument. The Bill of Rights is not for sale
to the highest bidder nor can it be used to ransom captive dollars. This nation
will survive and grow strong, only if it would become convinced of the values
enshrined in the Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is
to delete all of Section 8 of the committee report and allow the new
Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has
two options. First, it can pursue the Salonga and the Romulo argument that
what the PCGG has been doing has been completely within the pale of the
law. If sustained, the PCGG can go on and should be able to go on, even
without the support of Section 8. If not sustained, however, the PCGG has
only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with
the law. From his prison cell, Thomas More said, "I'll give the devil benefit of
law for my nations safety sake. I ask the Commission to give the devil benefit
of law for our nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the

amendment excepting sequestration orders from the Bill of Rights, the
Constitutional Commission still adopted the amendment as Section
26, Article XVIII of the 1987 Constitution. The framers of the Constitution
[44]

were fully aware that absent Section 26, sequestration orders would not stand
the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in
force during the interregnum, absent a constitutional provision excepting
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even during
the interregnum the Filipino people continued to enjoy, under the Covenant
and the Declaration, almost the same rights found in the Bill of Rights of the
1973 Constitution.
The revolutionary government, after installing itself as the de
jure government, assumed responsibility for the States good faith compliance
with the Covenant to which the Philippines is a signatory. Article 2(1) of the
Covenant requires each signatory State to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant. Under Article 17(1) of the
[45]

Covenant, the revolutionary government had the duty to insure that [n]o one
shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its
Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although
the signatories to the Declaration did not intend it as a legally binding
document, being only a declaration, the Court has interpreted the Declaration
as part of the generally accepted principles of international law and binding on
the State. Thus, the revolutionary government was also obligated under
[46]

international law to observe the rights of individuals under the Declaration.

[47]

The revolutionary government did not repudiate the Covenant or the

Declaration during the interregnum. Whether the revolutionary government
could have repudiated all its obligations under the Covenant or the
Declaration is another matter and is not the issue here. Suffice it to say that
the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the revolutionary
government did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States good
faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March
1986 that the directives and orders of the revolutionary government became
subject to a higher municipal law that, if contravened, rendered such
directives and orders void. The Provisional Constitution adopted verbatim the
Bill of Rights of the 1973 Constitution. The Provisional Constitution served as
[48]

a self-limitation by the revolutionary government to avoid abuses of the

absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as
these officers did not exceed the authority granted them by the revolutionary
government. The directives and orders should not have also violated the
Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did
not repudiate it. The warrant, issued by a judge upon proper application,
specified the items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.
 However, the Constabulary raiding team seized items not included in the
warrant. As admitted by petitioners witnesses, the raiding team confiscated
items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons.
What else, aside from the weapons, were seized from the house of Miss
Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars,
some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house
of Elizabeth Dimaano. Do you know the reason why your team also seized
other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed that
the reason why they also brought the other items not included in the search
warrant was because the money and other jewelries were contained in
attach cases and cartons with markings Sony Trinitron, and I think three (3)
vaults or steel safes. Believing that the attach cases and the steel safes
were containing firearms, they forced open these containers only to find out
that they contained money.

xxx

Q. You said you found money instead of weapons, do you know the reason why
your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him decided
to bring along also the money because at that time it was already dark and
they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.[49]

Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.

xxx

AJ AMORES
 Q. Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other
properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we have
not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-
16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the
fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant,
like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring
along also the jewelries and other items, sir. I do not really know where it
was taken but they brought along also these articles. I do not really know
their reason for bringing the same, but I just learned that these were taken
because they might get lost if they will just leave this behind.

xxx
 Q. How about the money seized by your raiding team, they were not also included
in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were
suspected to be containing pistols or other high powered firearms, but in the
course of the search the contents turned out to be money. So the team
leader also decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your
raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.[51]

It is obvious from the testimony of Captain Sebastian that the warrant did
not include the monies, communications equipment, jewelry and land titles
that the raiding team confiscated.The search warrant did not particularly
describe these items and the raiding team confiscated them on its own
authority. The raiding team had no legal basis to seize these items without
showing that these items could be the subject of warrantless search and
seizure. Clearly, the raiding team exceeded its authority when it seized these
[52]

items.
The seizure of these items was therefore void, and unless these items are
contraband per se, and they are not, they must be returned to the person
[53]

from whom the raiding seized them. However, we do not declare that such
person is the lawful owner of these items, merely that the search and seizure
warrant could not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned
Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March
1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue for
a determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.
SO ORDERED.
Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr. and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his
concurring opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
 Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of J.
Reynato Puno.
Tinga, J., separate opinion reserved.