[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)[1] dated 18 November 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) [4] against Ramas.
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.[6] The Amended
Complaint prayed for, among others, the 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,[7] the court set the case for trial on the 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.[9] The Court held in Migrino that the PCGG does not have 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[10] and Republic v. Migrino[11] which involve the
same issues.

(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[13] and Republic v. Migrino.[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.[15] The PCGG tasked the AFP
Board to make the necessary recommendations to appropriate government agencies on the
action to be taken based on its findings.[16] The PCGG gave this task to the AFP Board 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;[17] or (2) AFP personnel involved in other cases of graft 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[19] does not suffice to make him a subordinate of 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;[21] (Emphasis
supplied)

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[22] clearly 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,[23] the Court outlined the cases that fall under the
jurisdiction of the PCGG pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[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.[27] The Ombudsman Act or Republic Act No. 6770 (RA No. 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.[29] Without these elements, the PCGG cannot claim jurisdiction over a
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.[30] Thus, we hold that there was no waiver of jurisdiction in this 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.[32] The right of the State to forfeit
unexplained wealth under 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.[34]The motion sought to charge the delinquent 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.[36]The PCGG prayed for an additional four 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.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended Complaint.[38] The Sandiganbayan correctly observed
that 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.[39]Petitioner argues that a revolutionary 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.[40] Petitioner asserts 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.[41] The resulting government was indisputably a
revolutionary 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,[43] petitioner Baseco, while conceding 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,[44] Article XVIII of the 1987 Constitution. The framers of
the Constitution 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[45] recognized in the
present Covenant. Under Article 17(1) of the 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.[46] Thus, the revolutionary government was also obligated under
international law to observe the rights[47] of individuals under the Declaration.
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.[48] The Provisional Constitution
served as 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.[52] Clearly, the raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are contraband per
se,[53]
and they are not, they must be returned to the person 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.
SEPARATE OPINION

PUNO, J.:

While I concur in the result of the ponencia of Mr. Justice Carpio, the ruling on whether or
not private respondent Dimaano could invoke her rights against unreasonable search and
seizure and to the exclusion of evidence resulting therefrom compels this humble
opinion. The ponencia states that (t)he correct issue is whether the Bill of Rights was operative
during the interregnum from February 26, 1986 (the day Corazon C. Aquino took her oath as
President) to March 24, 1986 (immediately before the adoption of the Freedom
Constitution).[1] The majority holds that the Bill of Rights was not operative, thus private
respondent Dimaano cannot invoke the right against unreasonable search and seizure and the
exclusionary right as her house was searched and her properties were seized during the
interregnum or on March 3, 1986. My disagreement is not with the ruling that the Bill of Rights
was not operative at that time, but with the conclusion that the private respondent has lost and
cannot invoke the right against unreasonable search and seizure and the exclusionary
right. Using a different lens in viewing the problem at hand, I respectfully submit that the
crucial issue for resolution is whether she can invoke these rights in the absence of a
constitution under the extraordinary circumstances after the 1986 EDSA Revolution. The
question boggles the intellect, and is interesting, to say the least, perhaps even to those not
half-interested in the law. But the question of whether the Filipinos were bereft of fundamental
rights during the one month interregnum is not as perplexing as the question of whether the
world was without a God in the three days that God the Son descended into the dead before He
rose to life. Nature abhors a vacuum and so does the law.

I. Prologue

The ponencia suggests that the Constitution, the Bill of Rights in particular, is the only
source of rights, hence in its absence, private respondent Dimaano cannot invoke her rights
against unreasonable search and seizure and to the exclusion of evidence obtained
therefrom. Pushing the ponencias line of reasoning to the extreme will result in the conclusion
that during the one month interregnum, the people lost their constitutionally guaranteed rights
to life, liberty and property and the revolutionary government was not bound by the strictures
of due process of law. Even before appealing to history and philosophy, reason shouts
otherwise.
The ponencia recognized the EDSA Revolution as a successful revolution[2] that installed the
Aquino government. There is no right to revolt in the 1973 Constitution, in force prior to
February 23-25, 1986. Nonetheless, it is widely accepted that under natural law, the right of
revolution is an inherent right of the people. Thus, we justified the creation of a new legal order
after the 1986 EDSA Revolution, viz:

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. (H. Black, Handbook of American Constitutional Law II, 4th edition, 1927) 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. (Political Rights as Political
Questions, The Paradox of Luther v. Borden, 100 Harvard Law Review 1125, 1133 [1987])[3]
It is my considered view that under this same natural law, private respondent Dimaano has a
right against unreasonable search and seizure and to exclude evidence obtained as a
consequence of such illegal act. To explain my thesis, I will first lay down the relevant law
before applying it to the facts of the case at bar. Tracking down the elusive law that will govern
the case at bar will take us to the labyrinths of philosophy and history. To be sure, the difficulty
of the case at bar lies less in the application of the law, but more in finding the applicable law. I
shall take up the challenge even if the route takes negotiating, but without trespassing, on
political and religious thickets.

II. Natural Law and Natural Rights

As early as the Greek civilization, man has alluded to a higher, natural standard or law to
which a state and its laws must conform. Sophocles unmistakably articulates this in his poignant
literary piece, Antigone. In this mid-fifth century Athenian tragedy, a civil war divided two
brothers, one died defending Thebes, and the other, Polyneices, died attacking it. The king
forbade Polyneices burial, commanding instead that his body be left to be devoured by
beasts. But according to Greek religious ideas, only a burial -even a token one with a handful of
earth- could give repose to his soul. Moved by piety, Polyneices sister, Antigone, disobeyed the
command of the king and buried the body. She was arrested. Brought before the king who asks
her if she knew of his command and why she disobeyed, Antigone replies:
. . .These laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang.[4]

Antigone was condemned to be buried alive for violating the order of the king.[5]
Aristotle also wrote in his Nicomachean Ethics: Of political justice part is natural, part legal
natural, that which everywhere has the same force and does not exist by peoples thinking this
or that; legal, that which is originally indifferent, but when it has been laid down is not
indifferent, e.g. that a prisoners ransom shall be mina, or that a goat and not two sheep shall be
sacrificed, and again all the laws that are passed for particular cases, . . .[6] Aristotle states that
(p)articular law is that which each community lays down and applies to its own members: this is
partly written and partly unwritten. Universal law is the law of Nature. For there really is, as
every one to some extent divines, a natural justice and injustice that is binding on all men, even
on those who have no association or covenant with each other. It is this that Sophocles
Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature.[7]
Later, the Roman orator Cicero wrote of natural law in the first century B.C. in this wise:

True law is right reason in agreement with nature; it is of universal application, unchanging and
everlasting; it summons to duty by its commands, and averts from wrongdoing by its
prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though
neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed
from its obligations by senate or people, and we need not look outside ourselves for an
expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be valid for all
nations and at all times, and there will be one master and ruler, that is, God, over us all, for he
is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is
fleeing from himself and denying his human nature, and by reason of this very fact he will suffer
the worst penalties, even if he escapes what is commonly considered punishment. [8]

This allusion to an eternal, higher, and universal natural law continues from classical
antiquity to this day. The face of natural law, however, has changed throughout the classical,
medieval, modern, and contemporary periods of history.
In the medieval times, shortly after 1139, Gratian published the Decretum, a collection and
reconciliation of the canon laws in force, which distinguished between divine or natural law and
human law. Similar to the writings of the earliest Church Fathers, he related this natural law to
the Decalogue and to Christs commandment of love of ones neighbor. The law of nature is that
which is contained in the Law and the Gospel, by which everyone is commanded to do unto
others as he would wish to be done unto him, and is prohibited from doing unto others that
which he would be unwilling to be done unto himself.[9] This natural law precedes in time and
rank all things, such that statutes whether ecclesiastical or secular, if contrary to law, were to
be held null and void.[10]
The following century saw a shift from a natural law concept that was revelation-centered
to a concept related to mans reason and what was discoverable by it, under the influence of
Aristotles writings which were coming to be known in the West. William of Auxerre
acknowledged the human capacity to recognize good and evil and Gods will, and made reason
the criterion of natural law. Natural law was thus id quod naturalis ratio sine omni deliberatione
aut sine magna dictat esse faciendum or that which natural reason, without much or even any
need of reflection, tells us what we must do.[11] Similarly, Alexander
[12]
of Hales saw human reason as the basis for recognizing natural law and St. Bonaventure
wrote that what natural reason commands is called the natural law.[13] By the thirteenth
century, natural law was understood as the law of right reason, coinciding with the biblical law
but not derived from it.[14]
Of all the medieval philosophers, the Italian St. Thomas Aquinas is indisputably regarded as
the most important proponent of traditional natural law theory. He created a comprehensive
and organized synthesis of the natural law theory which rests on both the classical (in
particular, Aristotelian philosophy) and Christian foundation, i.e., on reason and
revelation.[15] His version of the natural law theory rests on his vision of the universe as
governed by a single, self-consistent and overarching system of law under the direction and
authority of God as the supreme lawgiver and judge.[16] Aquinas defined law as an ordinance of
reason for the common good, made by him who has care of the community, and
promulgated.[17] There are four kinds of laws in his natural law theory: eternal, natural, human,
and divine.
First, eternal law. To Aquinas, a law is a dictate of practical reason (which provides
practical directions on how one ought to act as opposed to speculative reason which provides
propositional knowledge of the way things are) emanating from the ruler who governs a perfect
community.[18] Presupposing that Divine Providence rules the universe, and Divine Providence
governs by divine reason, then the rational guidance of things in God the Ruler of the universe
has the nature of a law. And since the divine reasons conception of things is not subject to time
but is eternal, this kind of law is called eternal law.[19] In other words, eternal law is that law
which is a dictate of Gods reason. It is the external aspect of Gods perfect wisdom, or His
wisdom applied to His creation.[20] Eternal law consists of those principles of action that God
implanted in creation to enable each thing to perform its proper function in the overall order of
the universe. The proper function of a thing determines what is good and bad for it: the good
consists of performing its function while the bad consists of failing to perform it.[21]
 Then, natural law. This consists of principles of eternal law which are specific to human
beings as rational creatures. Aquinas explains that law, as a rule and measure, can be in a
person in two ways: in one way, it can be in him that rules and measures; and in another way,
in that which is ruled and measured since a thing is ruled and measured in so far as it partakes
of the rule or measure. Thus, since all things governed by Divine Providence are regulated and
measured by the eternal law, then all things partake of or participate to a certain extent in the
eternal law; they receive from it certain inclinations towards their proper actions and
ends. Being rational, however, the participation of a human being in the Divine Providence, is
most excellent because he participates in providence itself, providing for himself and others. He
participates in eternal reason itself and through this, he possesses a natural inclination to right
action and right end. This participation of the rational creature in the eternal law is called
natural law. Hence, the psalmist says: The light of Thy countenance, O Lord, is signed upon us,
thus implying that the light of natural reason, by which we discern what is good and what is
evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine
light. It is therefore evident that the natural law is nothing else than the rational creatures
participation in the eternal law.[22] In a few words, the natural law is a rule of reason,
promulgated by God in mans nature, whereby man can discern how he should act. [23]
Through natural reason, we are able to distinguish between right and wrong; through free
will, we are able to choose what is right. When we do so, we participate more fully in the
eternal law rather than being merely led blindly to our proper end. We are able to choose that
end and make our compliance with eternal law an act of self-direction. In this manner, the law
becomes in us a rule and measure and no longer a rule and measure imposed from an external
source.[24] The question that comes to the fore then is what is this end to which natural law
directs rational creatures?
The first self-evident principle of natural law is that good is to be pursued and done, and
evil is to be avoided. All other precepts of the natural law are based upon this, so that whatever
the practical reason naturally apprehends as mans good (or evil) belongs to the precept of the
natural law as something to be done or avoided.[25] Because good is to be sought and evil
avoided, and good is that which is in accord with the nature of a given creature or the
performance of a creatures proper function, then the important question to answer is what is
human nature or the proper function of man. Those to which man has a natural inclination are
naturally apprehended by reason as good and must thus be pursued, while their opposites are
evil which must be avoided.[26] Aquinas identifies the basic inclinations of man as follows:

1. To seek the good, including his highest good, which is eternal happiness with God.[27]

2. To preserve himself in existence.

3. To preserve the species - that is, to unite sexually.

4. To live in community with other men.

5. To use his intellect and will - that is, to know the truth and to make his own decision.[28]

As living creatures, we have an interest in self-preservation; as animals, in procreation; and

as rational creatures, in living in society and exercising our intellectual and spiritual capacities in
the pursuit of knowledge.[29] God put these inclinations in human nature to help man achieve
his final end of eternal happiness. With an understanding of these inclinations in our human
nature, we can determine by practical reason what is good for us and what is bad. [30] In this
sense, natural law is an ordinance of reason.[31] Proceeding from these inclinations, we can
apply the natural law by deduction, thus: good should be done; this action is good; this action
should therefore be done.[32] Concretely, it is good for humans to live peaceably with one
another in society, thus this dictates the prohibition of actions such as killing and stealing that
harm society.[33]
From the precepts of natural law, human reason needs to proceed to the more particular
determinations or specialized regulations to declare what is required in particular cases
considering societys specific circumstances. These particular determinations, arrived at by
human reason, are called human laws (Aquinas positive law). They are necessary to clarify the
demands of natural law. Aquinas identifies two ways by which something may be derived from
natural law: first, like in science, demonstrated conclusions are drawn from principles; and
second, as in the arts, general forms are particularized as to details like the craftsman
determining the general form of a house to a particular shape.[34] Thus, according to Aquinas,
some things are derived from natural law by way of conclusion (such as one must not kill may
be derived as a conclusion from the principle that one should do harm to no man) while some
are derived by way of determination (such as the law of nature has it that the evildoer should
be punished, but that he be punished in this or that way is not directly by natural law but is a
derived determination of it).[35] Aquinas says that both these modes of derivation are found in
the human law. But those things derived as a conclusion are contained in human law not as
emanating therefrom exclusively, but having some force also from the natural law. But those
things which are derived in the second manner have no other force than that of human law. [36]
Finally, there is divine law which is given by God, i.e., the Old Testament and the New
Testament. This is necessary to direct human life for four reasons. First, through law, man is
directed to proper actions towards his proper end. This end, which is eternal happiness and
salvation, is not proportionate to his natural human power, making it necessary for him to be
directed not just by natural and human law but by divinely given law. Secondly, because of
uncertainty in human judgment, different people form different judgments on human acts,
resulting in different and even contrary laws. So that man may know for certain what he ought
to do and avoid, it was necessary for man to be directed in his proper acts by a God-given law
for it is certain that such law cannot err. Thirdly, human law can only judge the external actions
of persons. However, perfection of virtue consists in man conducting himself right in both his
external acts and in his interior motives. The divine law thus supervenes to see and judge both
dimensions. Fourthly, because human law cannot punish or forbid all evils, since in aiming to do
away with all evils it would do away with many good things and would hinder the advancement
of the common good necessary for human development, divine law is needed.[37] For example,
if human law forbade backbiting gossip, in order to enforce such a law, privacy and trust that is
necessary between spouses and friends would be severely restricted. Because the price paid to
enforce the law would outweigh the benefits, gossiping ought to be left to God to be judged
and punished. Thus, with divine law, no evil would remain unforbidden and unpunished.[38]
Aquinas traditional natural law theory has been advocated, recast and restated by other
scholars up to the contemporary period.[39] But clearly, what has had a pervading and lasting
impact on the Western philosophy of law and government, particularly on that of the United
States of America which heavily influenced the Philippine system of government and
constitution, is the modern natural law theory.
In the traditional natural law theory, among which was Aquinas, the emphasis was placed
on moral duties of man -both rulers and subjects- rather than on rights of the individual
citizen.Nevertheless, from this medieval theoretical background developed modern natural law
theories associated with the gradual development in Europe of modern secular territorial state.
These theories increasingly veered away from medieval theological trappings[40] and gave
particular emphasis to the individual and his natural rights.[41]
One far-reaching school of thought on natural rights emerged with the political philosophy
of the English man, John Locke. In the traditional natural law theory such as Aquinas, the
monarchy was not altogether disfavored because as Aquinas says, the rule of one man is more
useful than the rule of the many to achieve the unity of peace. [42] Quite different from Aquinas,
Locke emphasized that in any form of government, ultimate sovereignty rested in the people
and all legitimate government was based on the consent of the governed.[43] His political theory
was used to justify resistance to Charles II over the right of succession to the English throne and
the Whig Revolution of 1688-89 by which James II was dethroned and replaced by William and
Mary under terms which weakened the power of the crown and strengthened the power of the
Parliament.[44]
Locke explained his political theory in his major work, Second Treatise of
Government, originally published in 1690,[45] where he adopted the modern view that human
beings enjoyed natural rights in the state of nature, before the formation of civil or political
society. In this state of nature, it is self-evident that all persons are naturally in a state of perfect
freedom to order their actions, and dispose of their possessions and persons, as they think fit,
within the bounds of the law of nature, without asking leave or depending upon the will of any
other man.[46]Likewise, in the state of nature, it was self-evident that all persons were in a state
of equality, wherein all the power and jurisdiction is reciprocal, no one having more than
another; there being nothing more evident, than that creatures of the same species and rank,
promiscuously born to all the same advantages of nature, and the use of the same faculties,
should also be equal one amongst another without subordination or subjection . . . [47] Locke
quickly added, however, that though all persons are in a state of liberty, it is not a state of
license for the state of nature has a law of nature to govern it, which obliges every one: and
reason, which is that law, teaches all mankind, who will but consult it, that being all equal and
independent, no one ought to harm another in his life health, liberty, or possessions. .
.[48] Locke also alludes to an omnipotent, and infinitely wise maker whose workmanship they
(mankind) are, made to last during his (the makers) . . .pleasure.[49] In other words, through
reason, with which human beings arrive at the law of nature prescribing certain moral conduct,
each person can realize that he has a natural right and duty to ensure his own survival and well-
being in the world and a related duty to respect the same right in others, and preserve
mankind.[50] Through reason, human beings are capable of recognizing the need to treat others
as free, independent and equal as all individuals are equally concerned with ensuring their own
lives, liberties and properties.[51] In this state of nature, the execution of the law of nature is
placed in the hands of every individual who has a right to punish transgressors of the law of
nature to an extent that will hinder its violation.[52] It may be gathered from Lockes political
theory that the rights to life, health, liberty and property are natural rights, hence each
individual has a right to be free from violent death, from arbitrary restrictions of his person and
from theft of his property.[53] In addition, every individual has a natural right to defend oneself
from and punish those who violate the law of nature.
But although the state of nature is somewhat of an Eden before the fall, there are two
harsh inconveniences in it, as Locke puts them, which adversely affect the exercise of natural
rights. First, natural law being an unwritten code of moral conduct, it might sometimes be
ignored if the personal interests of certain individuals are involved. Second, without any written
laws, and without any established judges or magistrates, persons may be judges in their own
cases and self-love might make them partial to their side. On the other hand, ill nature, passion
and revenge might make them too harsh to the other side. Hence, nothing but confusion and
disorder will follow.[54] These circumstances make it necessary to establish and enter a civil
society by mutual agreement among the people in the state of nature, i.e., based on a social
contract founded on trust and consent. Locke writes:

The only way whereby any one divests himself of his natural liberty, and puts on the bonds of
civil society, is by agreeing with other men to join and unite into a community for their
comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their
properties (used in the broad sense, referring to life, liberty and property) and a greater
security against any, that are not of it.[55]

This collective agreement then culminated in the establishment of a civil government.

 Three important consequences of Lockes theory on the origin of civil government and its
significance to the natural rights of individual subjects should be noted. First, since it was the
precariousness of the individuals enjoyment of his natural and equal right to life, liberty, and
property that justified the establishment of civil government, then the central, overriding
purpose of civil government was to protect and preserve the individuals natural rights. For just
as the formation by individuals of civil or political society had arisen from their desire to unite
for the mutual Preservation of their Lives, Liberties and Estates, which I (Locke) call by the
general name, Property,[56] so, too, did the same motive underlie - in the second stage of the
social contract - their collective decision to institute civil government.[57] Locke thus maintains,
again using the term property in the broad sense, that, (t)he great and chief end, therefore, of
mens uniting into common-wealths, and putting themselves under government, is the
preservation of their property.[58] Secondly, the central purpose that has brought a civil
government into existence, i.e., the protection of the individuals natural rights, sets firm limits
on the political authority of the civil government. A government that violates the natural rights
of its subjects has betrayed their trust, vested in it when it was first established, thereby
undermining its own authority and losing its claim to the subjects obedience. Third and finally,
individual subjects have a right of last resort to collectively resist or rebel against and overthrow
a government that has failed to discharge its duty of protecting the peoples natural rights and
has instead abused its powers by acting in an arbitrary or tyrannical manner. The overthrow of
government, however, does not lead to dissolution of civil society which came into being before
the establishment of civil government.[59]
Lockes ideas, along with other modern natural law and natural rights theories, have had a
profound impact on American political and legal thought. American law professor Philip
Hamburger observes that American natural law scholars generally agree that natural law
consisted of reasoning about humans in the state of nature (or absence of government) and
tend to emphasize that they were reasoning from the equal freedom of humans and the need
of humans to preserve themselves.[60] As individuals are equally free, they did not have the
right to infringe the equal rights of others; even self-preservation typically required individuals
to cooperate so as to avoid doing unto others what they would not have others do unto
them.[61] With Lockes theory of natural law as foundation, these American scholars agree on the
well-known analysis of how individuals preserved their liberty by forming government, i.e., that
in order to address the insecurity and precariousness of ones life, liberty and property in the
state of nature, individuals, in accordance with the principle of self-preservation, gave up a
portion of their natural liberty to civil government to enable it to preserve the
residue.[62] People must cede to [government] some of their natural rights, in order to vest it
with powers.[63] That individuals give up a part of their natural rights to secure the rest in the
modern natural law sense is said to be an old hackneyed and well known principle [64] thus:

That Man, on entering into civil society, of necessity, sacrifices a part of his natural liberty, has
been pretty universally taken for granted by writers on government. They seem, in general, not
to have admitted a doubt of the truth of the proposition. One feels as though it was treading on
forbidden ground, to attempt a refutation of what has been advanced by a Locke, a Bacari[a],
and some other writers and statesmen.[65]

But, while Lockes theory showed the necessity of civil society and government, it was careful to
assert and protect the individuals rights against government invasion, thus implying a theory of
limited government that both restricted the role of the state to protect the individuals
fundamental natural rights to life, liberty and property and prohibited the state, on moral
grounds, from violating those rights.[66] The natural rights theory, which is the characteristic
American interpretation of natural law, serves as the foundation of the well-entrenched
concept of limited government in the United States. It provides the theoretical basis of the
formulation of limits on political authority vis--vis the superior right of the individual which the
government should preserve.[67]
 Lockes ideas undoubtedly influenced Thomas Jefferson, the eminent statesman and
philosopher of the (American) revolution and of the first constitutional order which free men
were permitted to establish.[68] Jefferson espoused Lockes theory that man is free in the state
of nature. But while Locke limited the authority of the state with the doctrine of natural rights,
Jeffersons originality was in his use of this doctrine as basis for a fundamental law or
constitution established by the people.[69] To obviate the danger that the government would
limit natural liberty more than necessary to afford protection to the governed, thereby
becoming a threat to the very natural liberty it was designed to protect, people had to stipulate
in their constitution which natural rights they sacrificed and which not, as it was important for
them to retain those portions of their natural liberty that were inalienable, that facilitated the
preservation of freedom, or that simply did not need to be sacrificed. [70] Two ideas are
therefore fundamental in the constitution: one is the regulation of the form of government and
the other, the securing of the liberties of the people.[71] Thus, the American Constitution may be
understood as comprising three elements. First, it creates the structure and authority of a
republican form of government; second, it provides a division of powers among the different
parts of the national government and the checks and balances of these powers; and third, it
inhibits governments power vis--vis the rights of individuals, rights existent and potential,
patent and latent. These three parts have one prime objective: to uphold the liberty of the
people.[72]
But while the constitution guarantees and protects the fundamental rights of the people, it
should be stressed that it does not create them. As held by many of the American Revolution
patriots, liberties do not result from charters; charters rather are in the nature of declarations
of pre-existing rights.[73] John Adams, one of the patriots, claimed that natural rights are
founded in the frame of human nature, rooted in the constitution of the intellect and moral
world.[74] Thus, it is said of natural rights vis--vis the constitution:

. . . (t)hey exist before constitutions and independently of them. Constitutions enumerate such
rights and provide against their deprivation or infringement, but do not create them. It is
supposed that all power, all rights, and all authority are vested in the people before they form
or adopt a constitution. By such an instrument, they create a government, and define and limit
the powers which the constitution is to secure and the government respect. But they do not
thereby invest the citizens of the commonwealth with any natural rights that they did not
before possess.[75] (emphasis supplied)

A constitution is described as follows:

A Constitution is not the beginning of a community, nor the origin of private rights; it is not the
fountain of law, nor the incipient state of government; it is not the cause, but consequence, of
personal and political freedom; it grants no rights to the people, but is the creature of their
power, the instrument of their convenience. Designed for their protection in the enjoyment of
the rights and powers which they possessed before the Constitution was made, it is but the
framework of the political government, and necessarily based upon the preexisting condition of
laws, rights, habits and modes of thought.There is nothing primitive in it; it is all derived from a
known source. It presupposes an organized society, law, order, propriety, personal freedom, a
love of political liberty, and enough of cultivated intelligence to know how to guard against the
encroachments of tyranny.[76] (emphasis supplied)

That Lockes modern natural law and rights theory was influential to those who framed and
ratified the United States constitution and served as its theoretical foundation is
undeniable.[77] In a letter in which George Washington formally submitted the Constitution to
Congress in September 1787, he spoke of the difficulties of drafting the document in words
borrowed from the standard eighteenth-century natural rights analysis:
Individuals entering into society, must give up a share of liberty to preserve the rest. The
magnitude of the sacrifice must depend as well on situation and circumstance, as on the object
to be obtained. It is at all times difficult to draw with precision the line between those rights
which must be surrendered, and those which may be reserved . . . .[78] (emphasis supplied)

Natural law is thus to be understood not as a residual source of constitutional rights but
instead, as the reasoning that implied the necessity to sacrifice natural liberty to government in
a written constitution. Natural law and natural rights were concepts that explained and justified
written constitutions.[79]
With the establishment of civil government and a constitution, there arises a conceptual
distinction between natural rights and civil rights, difficult though to define their scope and
delineation. It has been proposed that natural rights are those rights that appertain to man in
right of his existence.[80] These were fundamental rights endowed by God upon human beings,
all those rights of acting as an individual for his own comfort and happiness, which are not
injurious to the natural rights of others.[81] On the other hand, civil rights are those that
appertain to man in right of his being a member of society.[82] These rights, however, are
derived from the natural rights of individuals since:

Man did not enter into society to become worse off than he was before, nor to have fewer
rights than he had before, but to have those rights better secured. His natural rights are the
foundation of all his rights.[83]

Civil rights, in this sense, were those natural rights particularly rights to security and
protection which by themselves, individuals could not safeguard, rather requiring the collective
support of civil society and government. Thus, it is said:

Every civil right has for its foundation, some natural right pre-existing in the individual, but to
the enjoyment of which his individual power is not, in all cases, sufficiently competent.[84]

The distinction between natural and civil rights is between that class of natural rights which
man retains after entering into society, and those which he throws into the common stock as a
member of society.[85] The natural rights retained by the individuals after entering civil society
were all the intellectual rights, or rights of the mind,[86] i.e., the rights to freedom of thought, to
freedom of religious belief and to freedom of expression in its various forms. The individual
could exercise these rights without government assistance, but government has the role of
protecting these natural rights from interference by others and of desisting from itself
infringing such rights. Government should also enable individuals to exercise more effectively
the natural rights they had exchanged for civil rights like the rights to security and protection -
when they entered into civil society.[87]
American natural law scholars in the 1780s and early 1790s occasionally specified which
rights were natural and which were not. On the Lockean assumption that the state of
naturewas a condition in which all humans were equally free from subjugation to one another
and had no common superior, American scholars tended to agree that natural liberty was the
freedom of individuals in the state of nature.[88] Natural rights were understood to be simply a
portion of this undifferentiated natural liberty and were often broadly categorized as the rights
to life, liberty, and property; or life, liberty and the pursuit of happiness. More specifically, they
identified as natural rights the free exercise of religion, freedom of conscience, [89] freedom of
speech and press, right to self-defense, right to bear arms, right to assemble and right to ones
reputation.[90] In contrast, certain other rights, such as habeas corpus and jury rights, do not
exist in the state of nature, but exist only under the laws of civil government or the constitution
because they are essential for restraining government.[91] They are called civil rights not only in
the sense that they are protected by constitutions or other laws, but also in the sense that they
are acquired rights which can only exist under civil government.[92]
 In his Constitutional Law, Black states that natural rights may be used to describe those
rights which belong to man by virtue of his nature and depend upon his personality. His
existence as an individual human being, clothed with certain attributes, invested with certain
capacities, adapted to certain kind of life, and possessing a certain moral and physical nature,
entitles him, without the aid of law, to such rights as are necessary to enable him to continue
his existence, develop his faculties, pursue and achieve his destiny.[93] An example of a natural
right is the right to life. In an organized society, natural rights must be protected by law, and
although they owe to the law neither their existence nor their sacredness, yet they are effective
only when recognized and sanctioned by law.[94] Civil rights include natural rights as they are
taken into the sphere of law. However, there are civil rights which are not natural rights such as
the right of trial by jury. This right is not founded in the nature of man, nor does it depend on
personality, but it falls under the definition of civil rights which are the rights secured by the
constitution to all its citizens or inhabitants not connected with the organization or
administration of government which belong to the domain of political rights. Natural rights are
the same all the world over, though they may not be given the fullest recognition under all
governments. Civil rights which are not natural rights will vary in different states or
countries.[95]
From the foregoing definitions and distinctions, we can gather that the inclusions in and
exclusions from the scope of natural rights and civil rights are not well-defined. This is
understandable because these definitions are derived from the nature of man which, in its
profundity, depth, and fluidity, cannot simply and completely be grasped and categorized. Thus,
phrases such as rights appertain(ing) to man in right of his existence, or rights which are a
portion of mans undifferentiated natural liberty, broadly categorized as the rights to life,
liberty, and property; or life, liberty and the pursuit of happiness, or rights that belong to man
by virtue of his nature and depend upon his personality serve as guideposts in identifying a
natural right. Nevertheless, although the definitions of natural right and civil right are not
uniform and exact, we can derive from the foregoing definitions that natural rights exist prior to
constitutions, and may be contained in and guaranteed by them. Once these natural rights
enter the constitutional or statutory sphere, they likewise acquire the character of civil rights in
the broad sense (as opposed to civil rights distinguished from political rights), without being
stripped of their nature as natural rights. There are, however, civil rights which are not natural
rights but are merely created and protected by the constitution or other law such as the right to
a jury trial.
Long after Locke conceived of his ideas of natural rights, civil society, and civil government,
his concept of natural rights continued to flourish in the modern and contemporary
period.About a hundred years after the Treatise of Government, Lockes natural law and rights
theory was restated by the eighteenth-century political thinker and activist, Thomas Paine. He
wrote his classic text, The Rights of Man, Part 1 where he argued that the central purpose of all
governments was to protect the natural and imprescriptible rights of man. Citing the 1789
French Declaration of the Rights of Man and of Citizens, Paine identified these rights as the
right to liberty, property, security and resistance of oppression. All other civil and political rights
- such as to limits on government, to freedom to choose a government, to freedom of speech,
and to fair taxation - were derived from those fundamental natural rights.[96]
Paine inspired and actively assisted the American Revolution and defended the French
Revolution. His views were echoed by the authors of the American and the French declarations
that accompanied these democratic revolutions.[97] The American Declaration of Independence
of July 4, 1776, the revolutionary manifesto of the thirteen newly-independent states of
America that were formerly colonies of Britain, reads:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed
by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness.That to secure these Rights, Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed, that whenever any Form of
Government becomes destructive of these Ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its Foundation on such Principles, and
organizing its Powers in such Form as to them shall seem most likely to effect their Safety and
Happiness.[98] (emphasis supplied)

His phrase rights of man was used in the 1789 French Declaration of the Rights of Man and of
Citizens, proclaimed by the French Constituent Assembly in August 1789, viz:

The representatives of the French people, constituted in a National Assembly, considering that
ignorance, oblivion or contempt of the Rights of Man are the only causes of public misfortunes
and of the corruption of governments, have resolved to lay down in a solemn Declaration,
the natural, inalienable and sacred Rights of Man, in order that this Declaration, being always
before all the members of the Social Body, should constantly remind them of their Rights and
their Duties. . .[99] (emphasis supplied)

Thereafter, the phrase rights of man gradually replaced natural rights in the latter period of
the eighteenth century, thus removing the theological assumptions of medieval natural law
theories. After the American and French Revolutions, the doctrine of the rights of man became
embodied not only in succinct declarations of rights, but also in new constitutions which
emphasized the need to uphold the natural rights of the individual citizen against other
individuals and particularly against the state itself.[100]
Considerable criticism was, however, hurled against natural law and natural rights theories,
especially by the logical positivist thinkers, as these theories were not empirically
verifiable.Nevertheless, the concept of natural rights or rights of man regained force and
influence in the 1940s because of the growing awareness of the wide scale violation of such
rights perpetrated by the Nazi dictatorship in Germany. The British leader Winston Churchill
and the American leader Franklin Roosevelt stated in the preface of their Atlantic Charter in
1942 that complete victory over their enemies is essential to decent life, liberty, independence
and religious freedom, and to preserve human rights and justice, in their own land as well as in
other lands. (emphasis supplied) This time, natural right was recast in the idea of human rights
which belong to every human being by virtue of his or her humanity. The idea superseded the
traditional concept of rights based on notions of God-given natural law and of social
contract. Instead, the refurbished idea of human rights was based on the assumption that each
individual person was entitled to an equal degree of respect as a human being. [101]
With this historical backdrop, the United Nations Organization published in 1948 its
Universal Declaration of Human Rights (UDHR) as a systematic attempt to secure universal
recognition of a whole gamut of human rights. The Declaration affirmed the importance of civil
and political rights such as the rights to life, liberty, property; equality before the law; privacy; a
fair trial; freedom of speech and assembly, of movement, of religion, of participation in
government directly or indirectly; the right to political asylum, and the absolute right not to be
tortured.Aside from these, but more controversially, it affirmed the importance of social and
economic rights.[102] The UDHR is not a treaty and its provisions are not binding law, but it is a
compromise of conflicting ideological, philosophical, political, economic, social and juridical
ideas which resulted from the collective effort of 58 states on matters generally considered
desirable and imperative. It may be viewed as a blending (of) the deepest convictions and ideals
of different civilizations into one universal expression of faith in the rights of man. [103]
On December 16, 1966, the United Nations General Assembly adopted the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR) and the Optional Protocol to the Civil and Political Rights
providing for the mechanism of checking state compliance to the international human rights
instruments such as through a reportorial requirement among governments. These treaties
entered into force on March 23, 1976[104] and are binding as international law upon
governments subscribing to them. Although admittedly, there will be differences in interpreting
particular statements of rights and freedoms in these United Nations instruments in the light of
varied cultures and historical traditions, the basis of the covenants is a common agreement on
the fundamental objective of the dignity and worth of the human person. Such agreement is
implied in adherence to the (United Nations) Charter and corresponds to the universal urge for
freedom and dignity which strives for expression, despite varying degrees of culture and
civilization and despite the countervailing forces of repression and authoritarianism.[105]
Human rights and fundamental freedoms were affirmed by the United Nations
Organization in the different instruments embodying these rights not just as a solemn protest
against the Nazi-fascist method of government, but also as a recognition that the security of
individual rights, like the security of national rights, was a necessary requisite to a peaceful and
stable world order.[106] Moskowitz wrote:

The legitimate concern of the world community with human rights and fundamental freedoms
stems in large part from the close relation they bear to the peace and stability of the
world. World War II and its antecedents, as well as contemporary events, clearly demonstrate
the peril inherent in the doctrine which accepts the state as the sole arbiter in questions
pertaining to the rights and freedoms of the citizen.The absolute power exercised by a
government over its citizens is not only a source of disorder in the international community; it
can no longer be accepted as the only guaranty of orderly social existence at home. But orderly
social existence is ultimately a matter which rests in the hands of the citizen. Unless the citizen
can assert his human rights and fundamental freedoms against his own government under the
protection of the international community, he remains at the mercy of the superior power.[107]

Similar to natural rights and civil rights, human rights as the refurbished idea of natural
right in the 1940s, eludes definition. The usual definition that it is the right which inheres in
persons from the fact of their humanity seemingly begs the question. Without doubt, there are
certain rights and freedoms so fundamental as to be inherent and natural such as the integrity
of the person and equality of persons before the law which should be guaranteed by all
constitutions of all civilized countries and effectively protected by their laws. [108] It is nearly
universally agreed that some of those rights are religious toleration, a general right to dissent,
and freedom from arbitrary punishment.[109] It is not necessarily the case, however, that what
the law guarantees as a human right in one country should also be guaranteed by law in all
other countries. Some human rights might be considered fundamental in some countries, but
not in others. For example, trial by jury which we have earlier cited as an example of a civil right
which is not a natural right, is a basic human right in the United States protected by its
constitution, but not so in Philippine jurisdiction.[110] Similar to natural rights, the definition
of human rights is derived from human nature, thus understandably not exact. The definition
that it is a right which inheres in persons from the fact of their humanity, however, can serve as
a guideline to identify human rights. It seems though that the concept of human rights is
broadest as it encompasses a human persons natural rights (e.g., religious freedom) and civil
rights created by law (e.g. right to trial by jury).
In sum, natural law and natural rights are not relic theories for academic discussion, but
have had considerable application and influence. Natural law and natural rights theories have
played an important role in the Declaration of Independence, the Abolition (anti-slavery)
movement, and parts of the modern Civil Rights movement.[111] In charging Nazi and Japanese
leaders with crimes against humanity at the end of the Second World War, Allied tribunals in
1945 invoked the traditional concept of natural law to override the defense that those charged
had only been obeying the laws of the regimes they served.[112] Likewise, natural law, albeit
called by another name such as substantive due process which is grounded on reason and
fairness, has served as legal standard for international law, centuries of development in the
English common law, and certain aspects of American constitutional law.[113] In controversies
involving the Bill of Rights, the natural law standards of reasonableness and fairness or justified
on balance are used. Questions such as these are common: Does this form of government
involvement with religion endanger religious liberty in a way that seems unfair to some
group? Does permitting this restriction on speech open the door to government abuse of
political opponents? Does this police investigative practice interfere with citizens legitimate
interests in privacy and security?[114] Undeniably, natural law and natural rights theories have
carved their niche in the legal and political arena.

III. Natural Law and Natural Rights

in Philippine Cases and the Constitution

A. Traces of Natural Law and

Natural Rights Theory in Supreme Court Cases

Although the natural law and natural rights foundation is not articulated, some Philippine
cases have made reference to natural law and rights without raising controversy. For example,
in People v. Asas,[115] the Court admonished courts to consider cautiously an admission or
confession of guilt especially when it is alleged to have been obtained by intimidation and
force.The Court said: (w)ithal, aversion of man against forced self-affliction is a matter of
Natural Law.[116] In People v. Agbot,[117] we did not uphold lack of instruction as an excuse for
killing because we recognized the offense of taking ones life being forbidden by natural law and
therefore within instinctive knowledge and feeling of every human being not deprived of
reason.[118]In Mobil Oil Philippines, Inc. v. Diocares, et al.,[119] Chief Justice Fernando
acknowledged the influence of natural law in stressing that the element of a promise is the
basis of contracts.In Manila Memorial Park Cemetery, Inc. v. Court of Appeals, et al.,[120] the
Court invoked the doctrine of estoppel which we have repeatedly pronounced is predicated on,
and has its origin in equity, which broadly defined, is justice according to natural law. In Yu Con
v. Ipil, et al.,[121] we recognized the application of natural law in maritime commerce.
The Court has also identified in several cases certain natural rights such as the right to
liberty,[122] the right of expatriation,[123] the right of parents over their children which provides
basis for a parents visitorial rights over his illegitimate children,[124] and the right to the fruits of
ones industry.[125]
In Simon, Jr. et al. v. Commission on Human Rights,[126] the Court defined human
rights, civil rights, and political rights. In doing so, we considered the United Nations
instruments to which the Philippines is a signatory, namely the UDHR which we have ruled in
several cases as binding upon the Philippines,[127] the ICCPR and the ICESCR. Still, we observed
that human rights is so generic a term that at best, its definition is inconclusive. But the term
human rights is closely identified to the universally accepted traits and attributes of an
individual, along with what is generally considered to be his inherent and inalienable rights,
encompassing almost all aspects of life,[128] i.e., the individuals social, economic, cultural,
political and civil relations.[129] On the other hand, we defined civil rights as referring to:

. . . those (rights) that belong to every citizen of the state or country, or, in a wider sense, to all
inhabitants, and are not connected with the organization or administration of
government. They include the rights to property, marriage, equal protection of the laws,
freedom of contract, etc. Or, as otherwise defined, civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also refer, in its
general sense, to rights capable of being enforced or redressed in a civil action.[130]
Guarantees against involuntary servitude, religious persecution, unreasonable searches and
seizures, and imprisonment for debt are also identified as civil rights.[131] The Courts definition
of civil rights was made in light of their distinction from political rights which refer to the right
to participate, directly or indirectly, in the establishment or administration of government, the
right of suffrage, the right to hold public office, the right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management of government.[132]
To distill whether or not the Courts reference to natural law and natural rights finds basis in
a natural law tradition that has influenced Philippine law and government, we turn to Philippine
constitutional law history.

B. History of the Philippine Constitution

and the Bill of Rights

During the Spanish colonization of the Philippines, Filipinos ardently fought for their
fundamental rights. The Propaganda Movement spearheaded by our national hero Jose Rizal,
Marcelo H. del Pilar, and Graciano Lopez-Jaena demanded assimilation of the Philippines by
Spain, and the extension to Filipinos of rights enjoyed by Spaniards under the Spanish
Constitution such as the inviolability of person and property, specifically freedom from arbitrary
action by officialdom particularly by the Guardia Civil and from arbitrary detention and
banishment of citizens. They clamored for their right to liberty of conscience, freedom of
speech and the press, freedom of association, freedom of worship, freedom to choose a
profession, the right to petition the government for redress of grievances, and the right to an
opportunity for education. They raised the roof for an end to the abuses of religious
corporations.[133]
With the Propaganda Movement having apparently failed to bring about effective reforms,
Andres Bonifacio founded in 1892 the secret society of the Katipunan to serve as the military
arm of the secessionist movement whose principal aim was to create an independent Filipino
nation by armed revolution.[134] While preparing for separation from Spain, representatives of
the movement engaged in various constitutional projects that would reflect the longings and
aspirations of the Filipino people. On May 31, 1897, a republican government was established
in Biak-na-Bato, followed on November 1, 1897 by the unanimous adoption of the Provisional
Constitution of the Republic of the Philippines, popularly known as the Constitution of Biak-na-
Bato, by the revolutions representatives. The document was an almost exact copy of the Cuban
Constitution of Jimaguayu,[135] except for four articles which its authors Felix Ferrer and Isabelo
Artacho added. These four articles formed the constitutions Bill of Rights and protected, among
others, religious liberty, the right of association, freedom of the press, freedom from
imprisonment except by virtue of an order issued by a competent court, and freedom from
deprivation of property or domicile except by virtue of judgment passed by a competent court
of authority.[136]
The Biak-na-Bato Constitution was projected to have a life-span of two years, after which a
final constitution would be drafted. Two months after it was adopted, however, the Pact of
Biak-na-Bato was signed whereby the Filipino military leaders agreed to cease fighting against
the Spaniards and guaranteed peace for at least three years, in exchange for monetary
indemnity for the Filipino men in arms and for promised reforms. Likewise, General Emilio
Aguinaldo, who by then had become the military leader after Bonifacios death, agreed to leave
the Philippines with other Filipino leaders. They left for Hongkong in December 1897.
A few months later, the Spanish-American war broke out in April 1898. Upon
encouragement of American officials, Aguinaldo came back to the Philippines and set up a
temporary dictatorial government with himself as dictator. In June 1898, the dictatorship was
terminated and Aguinaldo became the President of the Revolutionary Government.[137] By this
time, the relations between the American troops and the Filipino forces had become precarious
as it became more evident that the Americans planned to stay. In September 1898, the
Revolutionary Congress was inaugurated whose primary goal was to formulate and promulgate
a Constitution. The fruit of their efforts was the Malolos Constitution which, as admitted by
Felipe Calderon who drafted it, was based on the constitutions of South American
Republics[138] while the Bill of Rights was substantially a copy of the Spanish
Constitution.[139] The Bill of Rights included among others, freedom of religion, freedom from
arbitrary arrests and imprisonment, security of the domicile and of papers and effects against
arbitrary searches and seizures, inviolability of correspondence, due process in criminal
prosecutions, freedom of expression, freedom of association, and right of peaceful petition for
the redress of grievances. Its Article 28 stated that (t)he enumeration of the rights granted in
this title does not imply the prohibition of any others not expressly stated.[140] This suggests
that natural law was the source of these rights.[141] The Malolos Constitution was short-lived. It
went into effect in January 1899, about two months before the ratification of the Treaty of Paris
transferring sovereignty over the Islands to the United States. Within a month after the
constitutions promulgation, war with the United States began and the Republic survived for
only about ten months. On March 23, 1901, American forces captured Aguinaldo and a week
later, he took his oath of allegiance to the United States.[142]
In the early months of the war against the United States, American President McKinley sent
the First Philippine Commission headed by Jacob Gould Schurman to assess the Philippine
situation. On February 2, 1900, in its report to the President, the Commission stated that the
Filipino people wanted above all a guarantee of those fundamental human rights which
Americans hold to be the natural and inalienable birthright of the individual but which under
Spanish domination in the Philippines had been shamefully invaded and ruthlessly trampled
upon.[143] (emphasis supplied) In response to this, President McKinley, in his Instruction of April
7, 1900 to the Second Philippine Commission, provided an authorization and guide for the
establishment of a civil government in the Philippines and stated that (u)pon every division and
branch of the government of the Philippines . . . must be imposed these inviolable rules . .
. These inviolable rules were almost literal reproductions of the First to Ninth and the
Thirteenth Amendment of the United States Constitution, with the addition of the prohibition
of bills of attainder and ex post facto laws in Article 1, Section 9 of said Constitution. The
inviolable rules or Bill of Rights provided, among others, that no person shall be deprived of life,
liberty, or property without due process of law; that no person shall be twice put in jeopardy
for the same offense or be compelled to be a witness against himself; that the right to be
secure against unreasonable searches and seizures shall not be violated; that no law shall be
passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of grievances. Scholars have
characterized the Instruction as the Magna Charta of the Philippines and as a worthy rival of the
Laws of the Indies.[144]
The inviolable rules of the Instruction were re-enacted almost exactly in the Philippine Bill
of 1902,[145] an act which temporarily provided for the administration of the affairs of the civil
government in the Philippine Islands,[146] and in the Philippine Autonomy Act of
1916,[147] otherwise known as the Jones Law, which was an act to declare the purpose of the
people of the United States as to the future of the Philippine Islands and to provide an
autonomous government for it.[148] These three organic acts - the Instruction, the Philippine Bill
of 1902, and the Jones Law - extended the guarantees of the American Bill of Rights to the
Philippines. In Kepner v. United States,[149] Justice Day prescribed the methodology for applying
these inviolable rules to the Philippines, viz: (t)hese principles were not taken from the Spanish
law; they were carefully collated from our own Constitution, and embody almost verbatim the
safeguards of that instrument for the protection of life and liberty.[150] Thus, the inviolable rules
should be applied in the sense which has been placed upon them in construing the
instrument from which they were taken.[151] (emphasis supplied)
 Thereafter, the Philippine Independence Law, popularly known as the Tydings-McDuffie
Law of 1934, was enacted. It guaranteed independence to the Philippines and authorized the
drafting of a Philippine Constitution. The law provided that the government should be
republican in form and the Constitution to be drafted should contain a Bill of Rights. [152] Thus,
the Constitutional Convention of 1934 was convened. In drafting the Constitution, the
Convention preferred to be generally conservative on the belief that to be stable and
permanent, the Constitution must be anchored on the experience of the people, providing for
institutions which were the natural outgrowths of the national life.[153] As the people already
had a political organization buttressed by national traditions, the Constitution was to sanctify
these institutions tested by time and the Filipino peoples experience and to confirm the
practical and substantial rights of the people. Thus, the institutions and philosophy adopted in
the Constitution drew substantially from the organic acts which had governed the Filipinos for
more than thirty years, more particularly the Jones Law of 1916. In the absence of Philippine
precedents, the Convention considered precedents of American origin that might be suitable to
our substantially American political system and to the Filipino psychology and
traditions.[154] Thus, in the words of Claro M. Recto, President of the Constitutional Convention,
the 1935 Constitution was frankly an imitation of the American charter.[155]
Aside from the heavy American influence, the Constitution also bore traces of the Malolos
Constitution, the German Constitution, the Constitution of the Republic of Spain, the Mexican
Constitution, and the Constitutions of several South American countries, and the English
unwritten constitution. Though the Tydings-McDuffie law mandated a republican constitution
and the inclusion of a Bill of Rights, with or without such mandate, the Constitution would have
nevertheless been republican because the Filipinos were satisfied with their experience of a
republican government; a Bill of Rights would have nonetheless been also included because the
people had been accustomed to the role of a Bill of Rights in the past organic acts. [156]
The Bill of Rights in the 1935 Constitution was reproduced largely from the report of the
Conventions committee on bill of rights. The report was mostly a copy of the Bill of Rights in the
Jones Law, which in turn was borrowed from the American constitution. Other provisions in the
report drew from the Malolos Constitution and the constitutions of the Republic of Spain, Italy
and Japan. There was a conscious effort to retain the phraseology of the well-known provisions
of the Jones Law because of the jurisprudence that had built around them. The Convention
insistently avoided including provisions in the Bill of Rights not tested in the Filipino
experience.[157] Thus, upon submission of its draft bill of rights to the President of the
Convention, the committee on bill of rights stated:

Adoption and adaptation have been the relatively facile work of your committee in the
formulation of a bill or declaration of rights to be incorporated in the Constitution of the
Philippine Islands. No attempt has been made to incorporate new or radical changes. . .

The enumeration of individual rights in the present organic law (Acts of Congress of July 1,
1902, August 29, 1916) is considered ample, comprehensive and precise enough to safeguard
the rights and immunities of Filipino citizens against abuses or encroachments of the
Government, its powers or agents. . .

Modifications or changes in phraseology have been avoided, wherever possible. This is because
the principles must remain couched in a language expressive of their historical background,
nature, extent and limitations, as construed and expounded by the great statesmen and
jurists that have vitalized them.[158] (emphasis supplied)

The 1935 Constitution was approved by the Convention on February 8, 1935 and signed on
February 19, 1935. On March 23, 1935, United States President Roosevelt affixed his signature
on the Constitution. By an overwhelming majority, the Filipino voters ratified it on May 14,
1935.[159]
 Then dawned the decade of the 60s. There grew a clamor to revise the 1935 charter for it
to be more responsive to the problems of the country, specifically in the socio-economic arena
and to the sources of threats to the security of the Republic identified by then President
Marcos. In 1970, delegates to the Constitution Convention were elected, and they convened on
June 1, 1971. In their deliberations, the spirit of moderation prevailed, and the . . . Constitution
was hardly notable for its novelty, much less a radical departure from our constitutional
tradition.[160]Our rights in the 1935 Constitution were reaffirmed and the government to which
we have been accustomed was instituted, albeit taking on a parliamentary rather than
presidential form.[161]
The Bill of Rights in the 1973 Constitution had minimal difference from its counterpart in
the 1935 Constitution. Previously, there were 21 paragraphs in one section, now there were
twenty-three. The two rights added were the recognition of the peoples right to access to
official records and documents and the right to speedy disposition of cases. To the right against
unreasonable searches and seizures, a second paragraph was added that evidence obtained
therefrom shall be inadmissible for any purpose in any proceeding.[162]
The 1973 Constitution went into effect on January 17, 1973 and remained the fundamental
law until President Corazon Aquino rose to power in defiance of the 1973 charter and upon the
direct exercise of the power of the Filipino people[163] in the EDSA Revolution of February 23-25,
1986. On February 25, 1986, she issued Proclamation No. 1 recognizing that sovereignty resides
in the people and all government authority emanates from them and that she and Vice
President Salvador Laurel were taking power in the name and by the will of the Filipino
people.[164] The old legal order, constitution and enactments alike, was overthrown by the new
administration.[165] A month thenceforth, President Aquino issued Proclamation No. 3,
Declaring National Policy to Implement the Reforms Mandated by the People, Protecting their
Basic Rights, Adopting a Provisional Constitution, and Providing for an Orderly Transition to
Government under a New Constitution. The Provisional Constitution, otherwise known as the
Freedom Constitution adopted certain provisions of the 1973 Constitution, including the Bill of
Rights which was adopted in toto, and provided for the adoption of a new constitution within
60 days from the date of Proclamation No. 3.[166]
Pursuant to the Freedom Constitution, the 1986 Constitutional Commission drafted the
1987 Constitution which was ratified and became effective on February 2, 1987. [167] As in the
1935 and 1973 Constitutions, it retained a republican system of government, but emphasized
and created more channels for the exercise of the sovereignty of the people through recall,
initiative, referendum and plebiscite.[168] Because of the wide-scale violation of human rights
during the dictatorship, the 1987 Constitution contains a Bill of Rights which more jealously
safeguards the peoples fundamental liberties in the essence of a constitutional democracy, in
the words of ConCom delegate Fr. Joaquin Bernas, S.J.[169] It declares in its state policies that
(t)he state values the dignity of every human person and guarantees full respect for human
rights.[170] In addition, it has a separate Article on Social Justice and Human Rights, under which,
the Commission on Human Rights was created.[171]
Considering the American model and origin of the Philippine constitution, it is not
surprising that Filipino jurists and legal scholars define and explain the nature of the Philippine
constitution in similar terms that American constitutional law scholars explain their
constitution. Chief Justice Fernando, citing Laski, wrote about the basic purpose of a civil
society and government, viz:

The basic purpose of a State, namely to assure the happiness and welfare of its citizens is kept
foremost in mind. To paraphrase Laski, it is not an end in itself but only a means to an end,
the individuals composing it in their separate and identifiable capacities having rights which
must be respected. It is their happiness then, and not its interest, that is the criterion by which
its behavior is to be judged; and it is their welfare, and not the force at its command, that sets
the limits to the authority it is entitled to exercise.[172] (emphasis supplied)
Citing Hamilton, he also defines a constitution along the lines of the natural law theory as a law
for the government, safeguarding (not creating) individual rights, set down in
writing.[173](emphasis supplied) This view is accepted by Taada and Fernando who wrote that
the constitution is a written instrument organizing the government, distributing its powers
and safeguarding the rights of the people.[174] Chief Justice Fernando also quoted Schwartz that
a constitution is seen as an organic instrument, under which governmental powers are both
conferred and circumscribed. Such stress upon both grant and limitation of authority is
fundamental in American theory. The office and purpose of the constitution is to shape and fix
the limits of governmental activity.[175] Malcolm and Laurel define it according to Justice
Millers definition in his opus on the American Constitution[176] published in 1893 as the written
instrument by which the fundamental powers of government are established, limited and
defined, and by which those powers are distributed among the several departments for their
safe and useful exercise for the benefit of the body politic.[177] The constitution exists to assure
that in the governments discharge of its functions, the dignity that is the birthright of every
human being is duly safeguarded.[178]
Clearly then, at the core of constitutionalism is a strong concern for individual rights [179] as
in the modern period natural law theories. Justice Laurel as delegate to the 1934 Constitutional
Convention declared in a major address before the Convention:

There is no constitution, worthy of the name, without a bill or declaration of rights. (It is) the
palladium of the peoples liberties and immunities, so that their persons, homes, their peace,
their livelihood, their happiness and their freedom may be safe and secure from an ambitious
ruler, an envious neighbor, or a grasping state.[180]

As Chairman of the Committee on the Declaration of Rights, he stated:

The history of the world is the history of man and his arduous struggle for liberty. . . . It is the
history of those brave and able souls who, in the ages that are past, have labored, fought and
bled that the government of the lash - that symbol of slavery and despotism - might endure no
more. It is the history of those great self-sacrificing men who lived and suffered in an age of
cruelty, pain and desolation, so that every man might stand, under the protection of great
rights and privileges, the equal of every other man.[181]

Being substantially a copy of the American Bill of Rights, the history of our Bill of Rights
dates back to the roots of the American Bill of Rights. The latter is a charter of the individuals
liberties and a limitation upon the power of the state[182] which traces its roots to the English
Magna Carta of 1215, a first in English history for a written instrument to be secured from a
sovereign ruler by the bulk of the politically articulate community that intended to lay down
binding rules of law that the ruler himself may not violate. In Magna Carta is to be found the
germ of the root principle that there are fundamental individual rights that the State -
sovereign though it is - may not infringe.[183] (emphasis supplied)
In Sales v. Sandiganbayan, et al.,[184] quoting Allado v. Diokno,[185] this Court ruled that the
Bill of Rights guarantees the preservation of our natural rights, viz:

The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory
use of political power. This bundle of rights guarantees the preservation of our natural rights
which include personal liberty and security against invasion by the government or any of its
branches or instrumentalities.[186] (emphasis supplied)

We need, however, to fine tune this pronouncement of the Court, considering that certain
rights in our Bill of Rights, for example habeas corpus, have been identified not as a natural
right, but a civil right created by law. Likewise, the right against unreasonable searches and
seizures has been identified in Simon as a civil right, without expounding however what civil
right meant therein - whether a natural right existing before the constitution and protected by
it, thus acquiring the status of a civil right; or a right created merely by law and non-existent in
the absence of law. To understand the nature of the right against unreasonable search and
seizure and the corollary right to exclusion of evidence obtained therefrom, we turn a heedful
eye on the history, concept and purpose of these guarantees.

IV. History of the Guarantee against

Unreasonable Search and Seizure and the
Right to Exclusion of Illegally Seized Evidence
in the United States and in the Philippines

The origin of the guarantee against unreasonable search and seizure in the Philippine
constitutions can be traced back to hundreds of years ago in a land distant from the
Philippines.Needless to say, the right is well-entrenched in history.
The power to search in England was first used as an instrument to oppress objectionable
publications.[187] Not too long after the printing press was developed, seditious and libelous
publications became a concern of the Crown, and a broad search and seizure power developed
to suppress these publications.[188] General warrants were regularly issued that gave all kinds of
people the power to enter and seize at their discretion under the authority of the Crown to
enforce publication licensing statutes.[189] In 1634, the ultimate ignominy in the use of general
warrants came when the early great illuminary of the common law,[190] and most influential of
the Crowns opponents,[191] Sir Edward Coke, while on his death bed, was subjected to a
ransacking search and the manuscripts of his Institutes were seized and carried away as
seditious and libelous publications.[192]
The power to issue general warrants and seize publications grew. They were also used to
search for and seize smuggled goods.[193] The developing common law tried to impose limits on
the broad power to search to no avail. In his History of the Pleas of Crown, Chief Justice Hale
stated unequivocally that general warrants were void and that warrants must be used on
probable cause and with particularity.[194] Member of Parliament, William Pitt, made his
memorable and oft-quoted speech against the unrestrained power to search:

The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail -
its roof may shake - the wind may blow through it - the storm may enter - the rain may enter;
but the King of England may not enter; all his force dares not cross the threshold of the ruined
tenement.[195]

Nevertheless, legislation authorizing general warrants continued to be passed.[196]

In the 16th century, writs of assistance, called as such because they commanded all officers
of the Crown to participate in their execution,[197] were also common. These writs authorized
searches and seizures for enforcement of import duty laws.[198] The same powers and
authorities and the like assistance that officials had in England were given to American customs
officers when parliament extended the customs laws to the colonies. The abuse in the writs of
assistance was not only that they were general, but they were not returnable and once issued,
lasted six months past the life of the sovereign.[199]
These writs caused profound resentment in the colonies.[200] They were predominantly
used in Massachusetts, the largest port in the colonies[201] and the seat of the American
revolution. When the writs expired six months after the death of George II in October
1760,[202] sixty-three Boston merchants who were opposed to the writs retained James Otis, Jr.
to petition the Superior Court for a hearing on the question of whether new writs should be
issued.[203] Otis used the opportunity to denounce Englands whole policy to the colonies and on
general warrants.[204] He pronounced the writs of assistance as the worst instrument of
arbitrary power, the most destructive of English liberty and the fundamental principles of law,
that ever was found in an English law book since they placed the liberty of every man in the
hands of every petty officer.[205] Otis was a visionary and apparently made the first argument
for judicial review and nullifying of a statute exceeding the legislatures power under the
Constitution and natural law.[206] This famous debate in February 1761 in Boston was perhaps
the most prominent event which inaugurated the resistance of the colonies to the oppressions
of the mother country. Then and there, said John Adams, then and there was the first scene of
the first act of opposition to the arbitrary claims of Great Britain. Then and there the child
Independence was born.[207] But the Superior Court nevertheless held that the writs could be
issued.[208]
Once the customs officials had the writs, however, they had great difficulty enforcing the
customs laws owing to rampant smuggling and mob resistance from the citizenry. [209] The
revolution had begun. The Declaration of Independence followed. The use of general warrants
and writs of assistance in enforcing customs and tax laws was one of the causes of the
American Revolution.[210]
Back in England, shortly after the Boston debate, John Wilkes, a member of Parliament,
anonymously published the North Briton, a series of pamphlets criticizing the policies of the
British government.[211] In 1763, one pamphlet was very bold in denouncing the
government. Thus, the Secretary of the State issued a general warrant to search for the
authors, printers, and publishers of [the] seditious and treasonable paper.[212] Pursuant to the
warrant, Wilkes house was searched and his papers were indiscriminately seized. He sued the
perpetrators and obtained a judgment for damages. The warrant was pronounced illegal as
totally subversive of the liberty and person and property of every man in this kingdom. [213]
Seeing Wilkes success, John Entick filed an action for trespass for the search and seizure of
his papers under a warrant issued earlier than Wilkes. This became the case of Entick v.
Carrington,[214] considered a landmark of the law of search and seizure and called a familiar
monument of English freedom.[215] Lord Camden, the judge, held that the general warrant for
Enticks papers was invalid. Having described the power claimed by the Secretary of the State
for issuing general search warrants, and the manner in which they were executed, Lord Camden
spoke these immortalized words, viz:

Such is the power and therefore one would naturally expect that the law to warrant it should
be clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is
not to be found there, it is not law.

The great end for which men entered into society was to secure their property. That right is
preserved sacred and incommunicable in all instances where it has not been taken away or
abridged by some public law for the good of the whole. The cases where this right of property is
set aside by positive law are various. Distresses, executions, forfeitures, taxes, etc., are all of
this description, wherein every man by common consent gives up that right for the sake of
justice and the general good. By the laws of England, every invasion of private property, be it
ever so minute, is a trespass. No man can set his foot upon my ground without my license but
he is liable to an action though the damage be nothing; which is proved by every declaration in
trespass where the defendant is called upon to answer for bruising the grass and even treading
upon the soil. If he admits the fact, he is bound to show by way of justification that some
positive law has justified or excused him. . . If no such excuse can be found or produced, the
silence of the books is an authority against the defendant and the plaintiff must have
judgment. . .[216] (emphasis supplied)

The experience of the colonies on the writs of assistance which spurred the Boston debate
and the Entick case which was a monument of freedom that every American statesman knew
during the revolutionary and formative period of America, could be confidently asserted to
have been in the minds of those who framed the Fourth Amendment to the Constitution, and
were considered as sufficiently explanatory of what was meant by unreasonable searches and
seizures.[217]
The American experience with the writs of assistance and the Entick case were considered
by the United States Supreme Court in the first major case to discuss the scope of the Fourth
Amendment right against unreasonable search and seizure in the 1885 case of Boyd v. United
States, supra, where the court ruled, viz:

The principles laid down in this opinion (Entick v. Carrington, supra) affect the very essence of
constitutional liberty and security. They reach farther than the concrete form of the case then
before the court, with its adventitious circumstances; they apply to all invasions, on the part of
the Government and its employees, of the sanctity of a mans home and the privacies of life. It
is not the breaking of his doors and the rummaging of his drawers that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal security,
personal liberty and private property,where that right has never been forfeited by his
conviction of some public offense; it is the invasion of this sacred right which underlies and
constitutes the essence of Lord Camdens judgment.[218] (emphasis supplied)

In another landmark case of 1914, Weeks v. United States,[219] the Court, citing Adams v.
New York,[220] reiterated that the Fourth Amendment was intended to secure the citizen in
person and property against the unlawful invasion of the sanctity of his home by officers of the
law, acting under legislative or judicial sanction.
With this genesis of the right against unreasonable searches and seizures and the
jurisprudence that had built around it, the Fourth Amendment guarantee was extended by the
United States to the Filipinos in succinct terms in President McKinleys Instruction of April 7,
1900, viz:

. . . that the right to be secure against unreasonable searches and seizures shall not be
violated.[221]

This provision in the Instruction was re-enacted in Section 5 of the Philippine Bill of 1902,
this time with a provision on warrants, viz:

That the right to be secure against unreasonable searches and seizures shall not be violated.

xxxxxxxxx

That no warrant shall issue except upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the person or things to be seized.[222]

The above provisions were reproduced verbatim in the Jones Law of 1916.
Then came the 1935 Constitution which provides in Article IV, Section 1(3), viz:

Section 1(3). The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall issue
but upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.

Initially, the Constitutional Conventions committee on bill of rights proposed an exact copy
of the Fourth Amendment of the United States Constitution in their draft, viz:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.[223]

During the debates of the Convention, however, Delegate Vicente Francisco proposed to
amend the provision by inserting the phrase to be determined by the judge after examination
under oath or affirmation of the complainant and the witness he may produce in lieu of
supported by oath or affirmation. His proposal was based on Section 98 of General Order No.
58 or the Code of Criminal Procedure then in force in the Philippines which provided that: (t)he
judge or justice of the peace must, before issuing the warrant, examine on oath or affirmation
the complainant and any witness he may produce and take their deposition in writing. [224] The
amendment was accepted as it was a remedy against the evils pointed out in the debates,
brought about by the issuance of warrants, many of which were in blank, upon mere affidavits
on facts which were generally found afterwards to be false.[225]
When the Convention patterned the 1935 Constitutions guarantee against unreasonable
searches and seizures after the Fourth Amendment, the Convention made specific reference to
the Boyd case and traced the history of the guarantee against unreasonable search and seizure
back to the issuance of general warrants and writs of assistance in England and the American
colonies.[226] From the Boyd case, it may be derived that our own Constitutional guarantee
against unreasonable searches and seizures, which is an almost exact copy of the Fourth
Amendment, seeks to protect rights to security of person and property as well as privacy in
ones home and possessions.
Almost 40 years after the ratification of the 1935 Constitution, the provision on the right
against unreasonable searches and seizures was amended in Article IV, Section 3 of the 1973
Constitution, viz:

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or things to be
seized.

Noticeably, there were three modifications of the 1935 counterpart, namely: (1) the clause was
made applicable to searches and seizures of whatever nature and for any purpose; (2) the
provision on warrants was expressly made applicable to both search warrant or warrant of
arrest; and (3) probable cause was made determinable not only by a judge, but also by such
other officer as may be authorized by law.[227] But the concept and purpose of the right
remained substantially the same.
As a corollary to the above provision on searches and seizures, the exclusionary rule made
its maiden appearance in Article IV, Section 4(2) of the Constitution, viz:

Section 4 (1). The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety and order require otherwise.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.
 That evidence obtained in violation of the guarantee against unreasonable searches and
seizures is inadmissible was an adoption of the Courts ruling in the 1967 case of Stonehill v.
Diokno.[228]
Sections 3 and 4 of the 1973 Constitution were adopted in toto in Article I, Section 1 of the
Freedom Constitution which took effect on March 25, 1986, viz:

Section 1. The provision of . . . ARTICLE IV (Bill of Rights) . . . of the 1973 Constitution, as

amended, remain in force and effect and are hereby adopted in toto as part of this Provisional
Constitution.[229]

Thereafter, pursuant to the Freedom Constitution, the 1987 Constitution was drafted and
ratified on February 2, 1987. Sections 2 and 3, Article III thereof provide:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by a judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

x x x x x x x xx

Section 3 (1). The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety and order requires otherwise as
prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

The significant modification of Section 2 is that probable cause may be determined only by a
judge and no longer by such other responsible officer as may be authorized by law. This was a
reversion to the counterpart provision in the 1935 Constitution.
Parenthetically, in the international arena, the UDHR provides a similar protection in Article
12, viz:

No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.

The ICCPR similarly protects this human right in Article 17, viz:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation.

2. Everyone has the right to protection of the law against such interference or attacks.

In the United States, jurisprudence on the Fourth Amendment continued to grow from
the Boyd case. The United States Supreme Court has held that the focal concern of the Fourth
Amendment is to protect the individual from arbitrary and oppressive official conduct.[230] It
also protects the privacies of life and the sanctity of the person from such interference.[231] In
later cases, there has been a shift in focus: it has been held that the principal purpose of the
guarantee is the protection of privacy rather than property, [f]or the Fourth Amendment
protects people, not places.[232] The tests that have more recently been formulated in
interpeting the provision focus on privacy rather than intrusion of property such as the
constitutionally protected area test in the 1961 case of Silverman v. United States[233] and the
reasonable expectation of privacy standard in Katz v. United States[234] which held that the
privacy of communication in a public telephone booth comes under the protection of the
Fourth Amendment.
Despite the shift in focus of the Fourth Amendment in American jurisdiction, the essence of
this right in Philippine jurisdiction has consistently been understood as respect for ones
personality, property, home, and privacy. Chief Justice Fernando explains, viz:

It is deference to ones personality that lies at the core of this right, but it could be also looked
upon as a recognition of a constitutionally protected area, primarily ones home, but not
necessarily excluding an office or a hotel room. (Cf. Hoffa v. United States, 385 US 293
[1966]) What is sought to be regarded is a mans prerogative to choose who is allowed entry
in his residence, for him to retreat from the cares and pressures, even at times the
oppressiveness of the outside world, where he can truly be himself with his family. In that
haven of refuge, his individuality can assert itself not only in the choice of who shall be
welcome but likewise in the objects he wants around him. There the state, however powerful,
does not as such have access except under the circumstances noted, for in the traditional
formulation, his house, however humble, is his castle. (Cf. Cooley: Near in importance to
exemption from any arbitrary control of the person is that maxim of the common law which
secures to the citizen immunity in his home against the prying eyes of the government, and
protection in person, property, and papers against even the process of the law, except in
specified cases. The maxim that every mans house is his castle, is made part of our
constitutional law in the clauses prohibiting unreasonable searches and seizures, and has
always been looked upon as of high value to the citizen. (1 Constitutional Limitations, pp. 610-
611 [1927]) In the language of Justice Laurel, this provision is intended to bulwark individual
security, home, and legitimate possessions (Rodriquez v. Vollamiel, 65 Phil. 230, 239 (1937).
Laurel con.) Thus is protected his personal privacy and dignity against unwarranted intrusion
by the State. There is to be no invasion on the part of the government and its employees of
the sanctity of a mans home and the privacies of life. (Boyd v. United States, 116 US 616, 630
[1886])[235] (emphasis supplied)

As early as 1904, the Court has affirmed the sanctity and privacy of the home in United
States v. Arceo,[236] viz:

The inviolability of the home is one of the most fundamental of all the individual rights declared
and recognized in the political codes of civilized nations. No one can enter into the home of
another without the consent of its owners or occupants.

The privacy of the home - the place of abode, the place where man with his family may dwell
in peace and enjoy the companionship of his wife and children unmolested by anyone, even
the king, except in rare cases - has always been regarded by civilized nations as one of the
most sacred personal rights to whom men are entitled. Both the common and the civil law
guaranteed to man the right to absolute protection to the privacy of his home. The king was
powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the
humblest citizen or subject might shut the door of his humble cottage in the face of the
monarch and defend his intrusion into that privacy which was regarded as sacred as any of the
kingly prerogatives. . .

A mans house is his castle, has become a maxim among the civilized peoples of the earth. His
protection therein has become a matter of constitutional protection in England, America, and
Spain, as well as in other countries.
 xxxxxxxxx

So jealously did the people of England regard this right to enjoy, unmolested, the privacy of
their houses, that they might even take the life of the unlawful intruder, if it be nighttime. This
was also the sentiment of the Romans expressed by Tully: Quid enim sanctius quid omni
religione munitius, quam domus uniuscu jusque civium. [237] (emphasis supplied)

The Court reiterated this in the 1911 case of United States v. De Los Reyes, et al.,[238] to
demonstrate the uncompromising regard placed upon the privacy of the home that cannot be
violated by unreasonable searches and seizures, viz:

In the case of McClurg vs. Brenton (123 Iowa, 368), the court, speaking of the right of an officer
to enter a private house to search for the stolen goods, said:

The right of the citizen to occupy and enjoy his home, however mean or humble, free from
arbitrary invasion and search, has for centuries been protected with the most solicitous care by
every court in the English-speaking world, from Magna Charta down to the present, and is
embodied in every bill of rights defining the limits of governmental power in our own republic.

The mere fact that a man is an officer, whether of high or low degree, gives him no more right
than is possessed by the ordinary private citizen to break in upon the privacy of a home and
subject its occupants to the indignity of a search for the evidence of crime, without a legal
warrant procured for that purpose. No amount of incriminating evidence, whatever its source,
will supply the place of such warrant. At the closed door of the home, be it palace or hovel,
even blood-hounds must wait till the law, by authoritative process, bids it open. .
.[239] (emphasis supplied)

It is not only respect for personality, privacy and property, but to the very dignity of the human
being that lies at the heart of the provision.
There is also public interest involved in the guarantee against unreasonable search and
seizure. The respect that government accords its people helps it elicit allegiance and loyalty of
its citizens. Chief Justice Fernando writes about the right against unreasonable search and
seizure as well as to privacy of communication in this wise:

These rights, on their face, impart meaning and vitality to that liberty which in a constitutional
regime is a mans birth-right. There is the recognition of the area of privacy normally beyond
the power of government to intrude. Full and unimpaired respect to that extent is accorded
his personality. He is free from the prying eyes of public officials. He is let alone, a prerogative
even more valued when the agencies of publicity manifest less and less diffidence in
impertinent and unwelcome inquiry into ones person, his home, wherever he may be minded
to stay, his possessions, his communication. Moreover, in addition to the individual interest,
there is a public interest that is likewise served by these constitutional safeguards. They make
it easier for state authority to enlist the loyalty and allegiance of its citizens, with the
unimpaired deference to ones dignity and standing as a human being, not only to his person
as such but to things that may be considered necessary appurtenances to a decent
existence. A government that thus recognizes such limits and is careful not to trespass on what
is the domain subject to his sole control is likely to prove more stable and
enduring.[240] (emphasis supplied)

In the 1967 case of Stonehill, et al. v. Diokno,[241] this Court affirmed the sanctity of the
home and the privacy of communication and correspondence, viz:
To uphold the validity of the warrants in question would be to wipe out completely one of
the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of
the domicile and the privacy of communication and correspondence at the mercy of the
whims, caprice or passion of peace officers. This is precisely the evil sought to be remedied by
the constitutional provision above quoted - to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when the party in
power feels that the minority is likely to wrest it, even though by legal means. [242] (emphasis
supplied)

Even after the 1961 Silverman and 1967 Katz cases in the United States, which emphasized
protection of privacy rather than property as the principal purpose of the Fourth Amendment,
this Court declared the avowed purposes of the guarantee in the 1981 case of People v. CFI of
Rizal, Branch IX, Quezon City,[243] viz:

The purpose of the constitutional guarantee against unreasonable searches and seizures is
to prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity
and happiness and to the peace and security of every individual, whether it be of home or of
persons and correspondence. (Taada and Carreon, Political Law of the Philippines, Vol. 2, 139
[1962]). The constitutional inviolability of this great fundamental right against unreasonable
searches and seizures must be deemed absolute as nothing is closer to a mans soul than the
serenity of his privacy and the assurance of his personal security. Any interference allowable
can only be for the best causes and reasons.[244] (emphasis supplied)

Even if it were conceded that privacy and not property is the focus of the guarantee as
shown by the growing American jurisprudence, this Court has upheld the right to privacy and its
central place in a limited government such as the Philippines, viz:

The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson
is particularly apt: The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This
is indeed one of the basic distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector - protection, in other words, of the dignity and
integrity of the individual- has become increasingly important as modern society has
developed. All the forces of technological age - industrialization, urbanization, and organization
- operate to narrow the area of privacy and facilitate intrusion to it. In modern times, the
capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society.[245] (emphasis supplied)

The right to privacy discussed in Justice Douglas dissent in the Hayden case is
illuminating. We quote it at length, viz:

Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States
v. Poller, 43 F2d 911, 914: [I]t is only fair to observe that the real evil aimed at by the Fourth
Amendment is the search itself, that invasion of a mans privacy which consists in rummaging
about among his effects to secure evidence against him. If the search is permitted at all,
perhaps it does not make so much difference what is taken away, since the officers will
ordinarily not be interested in what does not incriminate, and there can be no sound policy in
protecting what does.

xxxxxxxxx

The constitutional philosophy is, I think, clear. The personal effects and possessions of the
individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the
long arm of the law, from any rummaging by police. Privacy involves the choice of the
individual to disclose or to reveal what he believes, what he thinks, what he possesses. The
article may be nondescript work of art, a manuscript of a book, a personal account book, a
diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights
believed that every individual needs both to communicate with others and to keep his affairs
to himself. That dual aspect of privacy means that the individual should have the freedom to
select for himself the time and circumstances when he will share his secrets with others and
decide the extent of the sharing (footnote omitted). This is his prerogative not the States. The
Framers, who were as knowledgeable as we, knew what police surveillance meant and how the
practice of rummaging through ones personal effects could destroy freedom.

xxxxxxxxx

I would . . . leave with the individual the choice of opening his private effects (apart from
contraband and the like) to the police and keeping their contents as secret and their integrity
inviolate.The existence of that choice is the very essence of the right of privacy. [246] (emphasis
supplied)

Thus, in Griswold v. Connecticut,[247] the United States Supreme Court upheld the right to
marital privacy and ruled that lawmakers could not make the use of contraceptives a crime and
sanction the search of marital bedrooms, viz:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs
of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding
the marriage relationship.

We deal with a right of privacy older than the Bill of Rights older than our political parties,
older than our school system. Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way
of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.[248] (emphasis supplied)

In relation to the right against unreasonable searches and seizures, private respondent
Dimaano likewise claims a right to the exclusionary rule, i.e., that evidence obtained from an
unreasonable search cannot be used in evidence against her. To determine whether this right is
available to her, we again examine the history, concept, and purpose of this right in both the
American and Philippine jurisdictions.
The exclusionary rule has had an uneven history in both the United States and Philippine
jurisdictions. In common law, the illegal seizure of evidence did not affect its admissibility
because of the view that physical evidence was the same however it was obtained. As
distinguished from a coerced confession, the illegal seizure did not impeach the authenticity or
reliability of physical evidence. This view prevailed in American jurisdiction until the Supreme
Court ruled in the 1914 Weeks case that evidence obtained in violation of the Fourth
Amendment was inadmissible in federal court as it amounted to theft by agents of the
government. This came to be known as the exclusionary rule and was believed to deter federal
law enforcers from violating the Fourth Amendment. In 1949, the
Fourth Amendment was incorporated into the Due Process Clause under the Fourteenth
Amendment [249] and made applicablein the state system in Wolf v. Colorado, [250] but the Court
rejected to incorporate the exclusionary rule. At the time Wolf was decided, 17 states followed
the Weeks doctrine while 30 states did not.[251] The Court reasoned:

We cannot brush aside the experience of States which deem the incidence of such conduct by
the police too slight to call for a deterrent remedy not by way of disciplinary measures but by
overriding the relevant rules of evidence. There are, moreover, reasons for excluding evidence
unreasonably obtained by the federal police which are less compelling in the case of police
under State or local authority. The public opinion of a community can far more effectively be
exerted against oppressive conduct on the part of police directly responsible to the community
itself than can local opinion, sporadically aroused, be brought to bear upon remote authority
pervasively exerted throughout the country.[252]

This difference in treatment on the federal and state level of evidence obtained illegally
resulted in the silver platter doctrine. State law enforcement agents would provide federal
officers with illegally seized evidence, which was then admissible in federal court because, as
with illegally seized evidence by private citizens, federal officers were not implicated in
obtaining it.Thus, it was said that state law enforcers served up the evidence in federal cases in
silver platter. This pernicious practice was stopped with the United States Supreme Courts 1960
decision, Elkins v. United States.[253] Twelve years after Wolf, the United States Supreme Court
reversed Wolf and incorporated the exclusionary rule in the state system in Mapp v.
Ohio[254] because other means of controlling illegal police behavior had failed.[255] We quote at
length the Mapp ruling as it had a significant influence in the exclusionary rule in Philippine
jurisdiction, viz:

. . . Today we once again examine the Wolfs constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are led
by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee
against that very same unlawful conduct. . .

Since the Fourth Amendments right to privacy has been declared enforceable against the States
through the Due Process Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it is used against the Federal Government. Were it otherwise, then just
as without the Weeks rule the assurance against unreasonable federal searches and seizures
would be a form of words, valueless and undeserving of mention in a perpetual charter of
inestimable human liberties, so too, without that rule the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual nexus with the
freedom from all brutish means of coercing evidence as not to permit this Courts high regard
as freedom implicit in the concept of ordered liberty. At that time that the Court held in Wolf
that the amendment was applicable to the States through the Due Process Clause, the cases of
this court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its provisions. Even
Wolf stoutly adhered to that proposition. The right to privacy, when conceded operatively
enforceable against the States, was not susceptible of destruction by avulsion of the sanction
upon which its protection and enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne Cases.Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches - state or federal - it was logically and
constitutionally necessary that the exclusion doctrine - an essential part of the right to
privacy - be also insisted upon as an essential ingredient of the right newly recognized by the
Wolf case. In short, the admission of the new constitutional right by Wolf could not
consistently tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by reason of the unlawful
seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary
rule is to deter - to compel respect for the constitutional guaranty in the only available way -
by removing the incentive to disregard it. (Elkins v. United States, 364 US at 217)

xxxxxxxxx

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. (Cf. Marcus v. Search Warrant
of Property, 6 L ed 2d post, p. 1127) Having once recognized that the right to privacy embodied
in the Fourth Amendment is enforceable against the States, and that the right to be secure
against rude invasions of privacy by state officers is, therefore constitutional in origin, we can
no longer permit that right to remain an empty promise. Because it is enforceable in the same
manner and to like effect as other basic rights secured by its Due Process Clause, we can no
longer permit it to be revocable at the whim of any police officer who, in the name of law
enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and
truth, gives to the individual no more than that which the Constitution guarantees him, to the
police officer no less than that to which honest law enforcement is entitled, and to the courts,
that judicial integrity so necessary in the true administration of justice.[256] (emphasis
supplied)

It is said that the exclusionary rule has three purposes. The major and most often invoked
is the deterrence of unreasonable searches and seizures as stated in Elkins v. United
States[257] and quoted in Mapp: (t)he rule is calculated to prevent, not repair. Its purpose is to
deter to compel respect for constitutional guaranty in the only effective available way by
removing the incentive to disregard it.[258] Second is the imperative of judicial integrity, i.e., that
the courts do not become accomplices in the willful disobedience of a Constitution they are
sworn to uphold . . . by permitting unhindered governmental use of the fruits of such invasions.
. . A ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the
conduct which produced the evidence, while an application of the exclusionary rule withholds
the constitutional imprimatur.[259] Third is the more recent purpose pronounced by some
members of the United States Supreme Court which is that of assuring the people all potential
victims of unlawful government conduct that the government would not profit from its lawless
behavior, thus minimizing the risk of seriously undermining popular trust in
government.[260] The focus of concern here is not the police but the public. This third purpose is
implicit in the Mapp declaration that no man is to be convicted on unconstitutional
evidence.[261]
In Philippine jurisdiction, the Court has likewise swung from one position to the other on
the exclusionary rule. In the 1920 case of Uy Kheytin v. Villareal,[262] the Court citing Boyd,
ruled that seizure or compulsory production of a mans private papers to be used against him
was tantamount to self-incrimination and was therefore unreasonable search and seizure. This
was a proscription against fishing expeditions. The Court restrained the prosecution from using
the books as evidence. Five years later or in 1925, we held in People v. Carlos[263] that although
the Boyd and Silverthorne Lumber Co. and Silverthorne v. United States[264] cases are
authorities for the doctrine that documents obtained by illegal searches were inadmissible in
evidence in criminal cases, Weeks modified this doctrine by adding that the illegality of the
search and seizure should have initially been directly litigated and established by a pre-trial
motion for the return of the things seized. As this condition was not met, the illegality of the
seizure was not deemed an obstacle to admissibility. The subject evidence was nevertheless
excluded, however, for being hearsay. Thereafter, in 1932, the Court did not uphold the
defense of self-incrimination when fraudulent books, invoices and records that had been seized
were presented in evidence in People v. Rubio.[265] The Court gave three reasons: (1) the public
has an interest in the proper regulation of the partys books; (2) the books belonged to a
corporation of which the party was merely a manager; and (3) the warrants were not issued to
fish for evidence but to seize instruments used in the violation of [internal revenue] laws and to
further prevent the perpetration of fraud.[266]
The exclusionary rule applied in Uy Kheytin was reaffirmed seventeen years thence in the
1937 case of Alvarez v. Court of First Instance[267] decided under the 1935
Constitution.The Court ruled that the seizure of books and documents for the purpose of using
them as evidence in a criminal case against the possessor thereof is unconstitutional because it
makes the warrant unreasonable and the presentation of evidence offensive of the provision
against self-incrimination. At the close of the Second World War, however, the Court, in Alvero
v. Dizon,[268] again admitted in evidence documents seized by United States military officers
without a search warrant in a prosecution by the Philippine Government for treason. The Court
reasoned that this was in accord with the Laws and Customs of War and that the seizure was
incidental to an arrest and thus legal. The issue of self-incrimination was not addressed at all
and instead, the Court pronounced that even if the seizure had been illegal, the evidence would
nevertheless be admissible following jurisprudence in the United States that evidence illegally
obtained by state officers or private persons may be used by federal officers.[269]
Then came Moncado v. Peoples Court[270] in 1948. The Court made a categorical
declaration that it is established doctrine in the Philippines that the admissibility of evidence is
not affected by the illegality of the means used for obtaining it. It condemned the pernicious
influence of Boyd and totally rejected the doctrine in Weeks as subversive of evidentiary rules
in Philippine jurisdiction. The ponencia declared that the prosecution of those guilty of violating
the right against unreasonable searches and seizures was adequate protection for the
people.Thus it became settled jurisprudence that illegally obtained evidence was admissible if
found to be relevant to the case[271] until the 1967 landmark decision of Stonehill v.
Diokno[272] which overturned the Moncado rule. The Court held in Stonehill, viz:

. . . Upon mature deliberation, however, we are unanimously of the opinion that the position
taken in the Moncado case must be abandoned. Said position was in line with the American
common law rule, that the criminal should not be allowed to go free merely because the
constable has blundered, (People v. Defore, 140 NE 585) upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means
other than the exclusion of evidence unlawfully obtained (Wolf v. Colorado, 93 L.Ed. 1782),
such as common-law action for damages against the searching officer, against the party who
procured the issuance of the search warrant and against those assisting in the execution of an
illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and
such other legal remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures.[273]

The Court then quoted the portion of the Mapp case which we have quoted at length above in
affirming that the exclusionary rule is part and parcel of the right against unreasonable
searches and seizures. The Stonehill ruling was incorporated in Article 4, Section 4(2) of the
1973 Constitution and carried over to Article 3, Section 3(2) of the 1987 Constitution.

V. Application of the Natural Law

Culled from History and Philosophy:
Are the Rights Against Unreasonable Search and Seizure
and to the Exclusion of Illegally Seized Evidence Natural Rights
which Private Respondent Dimaano Can Invoke?
 In answering this question, Justice Goldbergs concurring opinion in the Griswold
case serves as a helpful guidepost to determine whether a right is so fundamental that the
people cannot be deprived of it without undermining the tenets of civil society and
government, viz:

In determining which rights are fundamental, judges are not left at large to decide cases in light
of their personal and private notions. Rather, they must look to the traditions and [collective]
conscience of our people to determine whether a principle is so rooted [there] . . . as to be
ranked as fundamental. (Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934)). The inquiry
is whether a right involved is of such character that it cannot be denied without violating those
fundamental principles of liberty and justice which lie at the base of all our civil and political
institutions. . . . Powell v. State of Alabama, 287 U.S. 45, 67 (1932)[274] (emphasis supplied)

In deciding a case, invoking natural law as solely a matter of the judges personal
preference, invites criticism that the decision is a performative contradiction and thus self-
defeating.Critics would point out that while the decision invokes natural law that abhors
arbitrariness, that same decision is tainted with what it abhors as it stands on the judges
subjective and arbitrary choice of a school of legal thought. Just as one judge will fight tooth
and nail to defend the natural law philosophy, another judge will match his fervor in defending
a contrary philosophy he espouses. However, invoking natural law because the history,
tradition and moral fiber of a people indubitably show adherence to it is an altogether different
story, for ultimately, in our political and legal tradition, the people are the source of all
government authority, and the courts are their creation. While it may be argued that the choice
of a school of legal thought is a matter of opinion, history is a fact against which one cannot
argue - and it would not be turning somersault with history to say that the American
Declaration of Independence and the consequent adoption of a constitution stood on a modern
natural law theory foundation as this is universally taken for granted by writers on
government.[275] It is also well-settled in Philippine history that the American system of
government and constitution were adopted by our 1935 Constitutional Convention as a model
of our own republican system of government and constitution. In the words of Claro M. Recto,
President of the Convention, the 1935 Constitution is frankly an imitation of the American
Constitution. Undeniably therefore, modern natural law theory, specifically Lockes natural
rights theory, was used by the Founding Fathers of the American constitutional democracy and
later also used by the Filipinos.[276]Although the 1935 Constitution was revised in 1973, minimal
modifications were introduced in the 1973 Constitution which was in force prior to the EDSA
Revolution. Therefore, it could confidently be asserted that the spirit and letter of the 1935
Constitution, at least insofar as the system of government and the Bill of Rights were
concerned, still prevailed at the time of the EDSA Revolution. Even the 1987 Constitution
ratified less than a year from the EDSA Revolution retained the basic provisions of the 1935 and
1973 Constitutions on the system of government and the Bill of Rights, with the significant
difference that it emphasized respect for and protection of human rights and stressed that
sovereignty resided in the people and all government authority emanates from them.
Two facts are easily discernible from our constitutional history. First, the Filipinos are a
freedom-loving race with high regard for their fundamental and natural rights. No amount of
subjugation or suppression, by rulers with the same color as the Filipinos skin or otherwise,
could obliterate their longing and aspiration to enjoy these rights. Without the peoples consent
to submit their natural rights to the ruler,[277] these rights cannot forever be quelled, for like
water seeking its own course and level, they will find their place in the life of the individual and
of the nation; natural right, as part of nature, will take its own course. Thus, the Filipinos fought
for and demanded these rights from the Spanish and American colonizers, and in fairly recent
history, from an authoritarian ruler. They wrote these rights in stone in every constitution they
crafted starting from the 1899 Malolos Constitution. Second, although Filipinos have given
democracy its own Filipino face, it is undeniable that our political and legal institutions are
American in origin. The Filipinos adopted the republican form of government that the
Americans introduced and the Bill of Rights they extended to our islands, and were the
keystones that kept the body politic intact. These institutions sat well with the Filipinos who
had long yearned for participation in government and were jealous of their fundamental and
natural rights. Undergirding these institutions was the modern natural law theory which
stressed natural rights in free, independent and equal individuals who banded together to form
government for the protection of their natural rights to life, liberty and property. The sole
purpose of government is to promote, protect and preserve these rights. And when
government not only defaults in its duty but itself violates the very rights it was established to
protect, it forfeits its authority to demand obedience of the governed and could be replaced
with one to which the people consent. The Filipino people exercised this highest of rights in the
EDSA Revolution of February 1986.
I will not endeavor to identify every natural right that the Filipinos fought for in EDSA. The
case at bar merely calls us to determine whether two particular rights - the rights against
unreasonable search and seizure and to the exclusion of evidence obtained therefrom - have
the force and effect of natural rights which private respondent Dimaano can invoke against the
government.
I shall first deal with the right against unreasonable search and seizure. On February 25,
1986, the new president, Corazon Aquino, issued Proclamation No. 1 where she declared that
she and the vice president were taking power in the name and by the will of the Filipino people
and pledged to do justice to the numerous victims of human rights violations.[278] It is implicit
from this pledge that the new government recognized and respected human rights. Thus, at the
time of the search on March 3, 1986, it may be asserted that the government had the duty, by
its own pledge, to uphold human rights. This presidential issuance was what came closest to a
positive law guaranteeing human rights without enumerating them. Nevertheless, even in the
absence of a positive law granting private respondent Dimaano the right against unreasonable
search and seizure at the time her house was raided, I respectfully submit that she can invoke
her natural right against unreasonable search and seizure.
The right against unreasonable search and seizure is a core right implicit in the natural right
to life, liberty and property. Our well-settled jurisprudence that the right against unreasonable
search and seizure protects the peoples rights to security of person and property, to the
sanctity of the home, and to privacy is a recognition of this proposition. The life to which each
person has a right is not a life lived in fear that his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he
established and consented to, will protect the security of his person and property. The ideal of
security in life and property dates back even earlier than the modern philosophers and the
American and French revolutions, but pervades the whole history of man. It touches every
aspect of mans existence, thus it has been described, viz:

The right to personal security emanates in a persons legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right
to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of
those things which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual.[279]

The individual in the state of nature surrendered a portion of his undifferentiated liberty and
agreed to the establishment of a government to guarantee his natural rights, including the right
to security of person and property, which he could not guarantee by himself. Similarly, the
natural right to liberty includes the right of a person to decide whether to express himself and
communicate to the public or to keep his affairs to himself and enjoy his privacy. Justice
Douglas reminds us of the indispensability of privacy in the Hayden case, thus: Those who
wrote the Bill of Rights believed that every individual needs both to communicate with others
and to keep his affairs to himself. A natural right to liberty indubitably includes the freedom to
determine when and how an individual will share the private part of his being and the extent of
his sharing. And when he chooses to express himself, the natural right to liberty demands that
he should be given the liberty to be truly himself with his family in his home, his haven of
refuge where he can retreat from the cares and pressures, even at times the oppressiveness of
the outside world, to borrow the memorable words of Chief Justice Fernando. For truly, the
drapes of a mans castle are but an extension of the drapes on his body that cover the
essentials. In unreasonable searches and seizures, the prying eyes and the invasive hands of the
government prevent the individual from enjoying his freedom to keep to himself and to act
undisturbed within his zone of privacy. Finally, indispensable to the natural right to property is
the right to ones possessions. Property is a product of ones toil and might be considered an
expression and extension of oneself. It is what an individual deems necessary to the enjoyment
of his life. With unreasonable searches and seizures, ones property stands in danger of being
rummaged through and taken away. In sum, as pointed out in De Los Reyes, persons are
subjected to indignity by an unreasonable search and seizure because at bottom, it is a violation
of a persons natural right to life, liberty and property. It is this natural right which sets man
apart from other beings, which gives him the dignity of a human being.
It is understandable why Filipinos demanded that every organic law in their history
guarantee the protection of their natural right against unreasonable search and seizure and
why the UDHR treated this right as a human right. It is a right inherent in the right to life, liberty
and property; it is a right appertain(ing) to man in right of his existence, a right that belongs to
man by virtue of his nature and depends upon his personality, and not merely a civil right
created and protected by positive law. The right to protect oneself against unreasonable search
and seizure, being a right indispensable to the right to life, liberty and property, may be derived
as a conclusion from what Aquinas identifies as mans natural inclination to self-preservation
and self-actualization. Man preserves himself by leading a secure life enjoying his liberty and
actualizes himself as a rational and social being in choosing to freely express himself and
associate with others as well as by keeping to and knowing himself. For after all, a reflective
grasp of what it means to be human and how one should go about performing the functions
proper to his human nature can only be done by the rational person himself in the confines of
his private space. Only he himself in his own quiet time can examine his life knowing that an
unexamined life is not worth living.
Every organic law the Filipinos established (the Malolos, 1935, 1973, and 1987
Constitutions) and embraced (the Instruction, Philippine Bill of 1902, and Jones Law) in the last
century included a provision guaranteeing the peoples right against unreasonable search and
seizure because the people ranked this right as fundamental and natural. Indeed, so
fundamental and natural is this right that the demand for it spurred the American revolution
against the English Crown. It resulted in the Declaration of Independence and the subsequent
establishment of the American Constitution about 200 years ago in 1789. A revolution is staged
only for the most fundamental of reasons - such as the violation of fundamental and natural
rights - for prudence dictates that governments long established should not be changed for
light and transient reasons.[280]
Considering that the right against unreasonable search and seizure is a natural right, the
government cannot claim that private respondent Dimaano is not entitled to the right for the
reason alone that there was no constitution granting the right at the time the search was
conducted. This right of the private respondent precedes the constitution, and does not depend
on positive law. It is part of natural rights. A violation of this right along with other rights stirred
Filipinos to revolutions. It is the restoration of the Filipinos natural rights that justified the
establishment of the Aquino government and the writing of the 1987 Constitution. I submit that
even in the absence of a constitution, private respondent Dimaano had a fundamental and
natural right against unreasonable search and seizure under natural law.
 We now come to the right to the exclusion of evidence illegally
seized. From Stonehill quoting Mapp, we can distill that the exclusionary rule in both the
Philippine and American jurisdictions is a freedom implicit in the concept of ordered liberty for
it is a necessary part of the guarantee against unreasonable searches and seizures, which in
turn is an essential part of the right to privacy that the Constitution protects. If the exclusionary
rule were not adopted, it would be to grant the right (against unreasonable search and seizure)
but in reality to withhold its privilege and enjoyment. Thus, the inevitable conclusion is that the
exclusionary rule is likewise a natural right that private respondent Dimaano can invoke even in
the absence of a constitution guaranteeing such right.
To be sure, the status of the exclusionary right as a natural right is admittedly not as
indisputable as the right against unreasonable searches and seizures which is firmly supported
by philosophy and deeply entrenched in history. On a lower tier, arguments have been raised
on the constitutional status of the exclusionary right. Some assert, on the basis of United States
v. Calandra,[281] that it is only a judicially-created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal constitutional
right of the party aggrieved.[282] Along the same line, others contend that the right against
unreasonable search and seizure merely requires some effective remedy, and thus Congress
may abolish or limit the exclusionary right if it could replace it with other remedies of a
comparable or greater deterrent effect. But these contentions have merit only if it is conceded
that the exclusionary rule is merely an optional remedy for the purpose of deterrence.[283]
Those who defend the constitutional status of the exclusionary right, however, assert that
there is nothing in Weeks that says that it is a remedy[284] or a manner of deterring police
officers.[285] In Mapp, while the court discredited other means of enforcing the Fourth
Amendment cited in Wolf, the thrust of the opinion was broader. Justice Clarke opined that no
man is to be convicted on unconstitutional evidence[286] and held that the exclusionary rule is
an essential part of both the Fourth and Fourteenth Amendments.[287]
Formulated in the Aquinian concept of human law, the debate is whether the exclusionary
right is the first kind of human law which may be derived as a conclusion from the natural law
precept that one should do no harm to another man, in the same way that conclusions are
derived from scientific principles, in which case the exclusionary right has force from natural
law and does not depend on positive law for its creation; or if it is the second kind of human
law which is derived by way of determination of natural law, in the same way that a carpenter
determines the shape of a house, such that it is merely a judicially or legislatively chosen
remedy or deterrent, in which case the right only has force insofar as positive law creates and
protects it.
In holding that the right against unreasonable search and seizure is a fundamental and
natural right, we were aided by philosophy and history. In the case of the exclusionary right,
philosophy can also come to the exclusionary rights aid, along the lines of Justice Clarkes
proposition in the Mapp case that no man shall be convicted on unconstitutional
evidence.Similarly, the government shall not be allowed to convict a man on evidence obtained
in violation of a natural right (against unreasonable search and seizure) for the protection of
which, government and the law were established. To rule otherwise would be to sanction the
brazen violation of natural rights and allow law enforcers to act with more temerity than a thief
in the night for they can disturb ones privacy, trespass ones abode, and steal ones property
with impunity. This, in turn, would erode the peoples trust in government.
Unlike in the right against unreasonable search and seizure, however, history cannot come
to the aid of the exclusionary right. Compared to the right against unreasonable search and
seizure, the exclusionary right is still in its infancy stage in Philippine jurisdiction, having been
etched only in the 1973 Constitution after the 1967 Stonehill ruling which finally laid to rest the
debate on whether illegally seized evidence should be excluded. In the United States, the
exclusionary rights genesis dates back only to the 1885 Boyd case on the federal level, and to
the 1961 Mapp case in the state level. The long period of non-recognition of the exclusionary
right has not caused an upheaval, much less a revolution, in both the Philippine and American
jurisdictions. Likewise, the UDHR, a response to violation of human rights in a particular period
in world history, did not include the exclusionary right. It cannot confidently be asserted
therefore that history can attest to its natural right status. Without the strength of history and
with philosophy alone left as a leg to stand on, the exclusionary rights status as a fundamental
and natural right stands on unstable ground. Thus, the conclusion that it can be invoked even in
the absence of a constitution also rests on shifting sands.
Be that as it may, the exclusionary right is available to private respondent Dimaano as she
invoked it when it was already guaranteed by the Freedom Constitution and the 1987
Constitution. The AFP Board issued its resolution on Ramas unexplained wealth only on July 27,
1987. The PCGGs petition for forfeiture against Ramas was filed on August 1, 1987 and was
later amended to name the Republic of the Philippines as plaintiff and to add private
respondent Dimaano as co-defendant. Following the petitioners stance upheld by the majority
that the exclusionary right is a creation of the Constitution, then it could be invoked as a
constitutional right on or after the Freedom Constitution took effect on March 25, 1986 and
later, when the 1987 Constitution took effect on February 2, 1987.

VI. Epilogue

The Filipino people have fought revolutions, by the power of the pen, the strength of the
sword and the might of prayer to claim and reclaim their fundamental rights. They set these
rights in stone in every constitution they established. I cannot believe and so hold that the
Filipinos during that one month from February 25 to March 24, 1986 were stripped naked of all
their rights, including their natural rights as human beings. With the extraordinary
circumstances before, during and after the EDSA Revolution, the Filipinos simply found
themselves without a constitution, but certainly not without fundamental rights. In that brief
one month, they retrieved their liberties and enjoyed them in their rawest essence, having just
been freed from the claws of an authoritarian regime. They walked through history with bare
feet, unshod by a constitution, but with an armor of rights guaranteed by the philosophy and
history of their constitutional tradition. Those natural rights inhere in man and need not be
granted by a piece of paper.
To reiterate, the right against unreasonable search and seizure which private respondent
Dimaano invokes is among the sacred rights fought for by the Filipinos in the 1986 EDSA
Revolution. It will be a profanity to deny her the right after the fight had been won. It does not
matter whether she believed in the righteousness of the EDSA Revolution or she contributed to
its cause as an alleged ally of the dictator, for as a human being, she has a natural right to life,
liberty and property which she can exercise regardless of existing or non-existing laws and
irrespective of the will or lack of will of governments.
I wish to stress that I am not making the duty of the Court unbearably difficult by taking it
to task every time a right is claimed before it to determine whether it is a natural right which
the government cannot diminish or defeat by any kind of positive law or action. The Court need
not always twice measure a law or action, first utilizing the constitution and second using
natural law as a yardstick. However, the 1986 EDSA Revolution was extraordinary, one that
borders the miraculous. It was the first revolution of its kind in Philippine history, and perhaps
even in the history of this planet. Fittingly, this separate opinion is the first of its kind in this
Court, where history and philosophy are invoked not as aids in the interpretation of a positive
law, but to recognize a right not written in a papyrus but inheres in man as man. The
unnaturalness of the 1986 EDSA revolution cannot dilute nor defeat the natural rights of man,
rights that antedate constitutions, rights that have been the beacon lights of the law since the
Greek civilization. Without respect for natural rights, man cannot rise to the full height of his
humanity.
I concur in the result.
SEPARATE OPINION

VITUG, J.:

The unprecedented 1986 People Power Revolution at EDSA remains to be such an enigma,
still confounding political scientists on its origins and repercussions, to so many. Now, before
the Court is yet another puzzle: Whether or not the Bill of Rights may be considered operative
during the interregnum from 26 February 1986 (the day Corazon C. Aquino took her oath to the
Presidency) to 24 March 1986 (immediately before the adoption of the Freedom
Constitution). Indeed, there are differing views on the other related question of whether or not
the 1973 Constitution has meanwhile been rendered, ipso facto, without force and effect by
the successful revolution.
The government under President Corazon C. Aquino was described as revolutionary for
having been so installed through a direct exercise of the power of the Filipino people in
disregard of the provisions of the 1973 Constitution.[1] It was said to be revolutionary in the
sense that it came into existence in defiance of existing legal processes, and President Aquino
assumed the reigns of government through the extra-legal action taken by the people.[2]
A revolution is defined by Western political scholars as being a rapid fundamental and
violent domestic change in the dominant values and myths of a society in its political
institutions, social structure, leadership, and government activity and policies. [3] A revolution
results in a complete overthrow of established government and of the existing legal
order.[4] Notable examples would be the French, Chinese, Mexican, Russian, and Cuban
revolutions. Revolution, it is pointed out, is to be distinguished from rebellion, insurrection,
revolt, coup, and war of independence.[5] A rebellion or insurrection may change policies,
leadership, and the political institution, but not the social structure and prevailing
values. A coup detat in itself changes leadership and perhaps policies but not necessarily more
extensive and intensive than that. A war of independence is a struggle of one community
against the rule by an alien community and does not have to involve changes in the social
structure of either community.[6]
The 1986 People Power Revolution is a uniquely Philippine experience. Much of its effects
may not be compared in good substance with those of the great revolutions. While a revolution
may be accomplished by peaceful means,[7] it is essential, however, that there be an
accompanying basic transformation in political and social structures. The revolution at Edsa has
not resulted in such radical change though it concededly could have. The offices of the
executive branch have been retained, the judiciary has been allowed to function, the military,
as well as the constitutional commissions and local governments, have remained intact. [8] It is
observed by some analysts that there has only been a change of personalities in the
government but not a change of structures[9] that can imply the consequent abrogation of the
fundamental law. The efficacy of a legal order must be distinguished from the question of its
existence[10] for it may be that the efficacy of a legal order comes to a low point which may,
nevertheless, continue to be operative and functioning.[11]
The proclamations issued, as well as the Provisional Constitution enacted by the Aquino
administration shortly after being installed, have revealed the new governments recognition
of and its intention to preserve the provisions of the 1973 Constitution on individual
rights. Proclamation No. 1,[12] dated 25 February 1986, has maintained that sovereignty resides
in the people and all government authority emanates from them. It has expressed that the
government would be dedicated to uphold justice, morality and decency in government,
freedom and democracy. In lifting the suspension of the privilege of the writ of habeas
corpus throughout the Philippines, for, among other reasons, the Filipino people have
established a new government bound to the ideals of genuine liberty and freedom for all,
Proclamation No. 2 of March 1986, has declared:

Now, therefore, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers
vested in me by the Constitution and the Filipino people, do hereby x x x lift the suspension of
the privilege of the writ of habeas corpus x x x.

What Constitution could the proclamation have been referring to? It could not have been the
Provisional Constitution, adopted only later on 25 March 1986 under Proclamation No. 3 which,
in fact, contains and attests to the new governments commitment to the restoration of
democracy and protection of basic rights, announcing that the the provisions of Article I
(National Territory), Article III (Citizenship), Article IV (Bill of Rights), Article V (Duties and
Obligations of Citizens), and Article VI (Suffrage) of the 1973 Constitution, as amended,
(shall) remain in force and effect, (emphasis supplied),[13] superseding only the articles on The
Batasang Pambansa, The Prime Minister and the Cabinet, Amendments, and Transitory
Provisions.[14] Verily, Proclamation No. 3 is an acknowledgment by the Aquino government of
the continued existence, subject to its exclusions, of the 1973 Charter.
The new government has done wisely. The Philippines, a member of the community of
nations and among the original members of the United Nations (UN) organized in 1941, has had
the clear obligation to observe human rights and the duty to promote universal respect for and
observance of all fundamental freedoms for all individuals without distinction as to race, sex,
language or religion.[15] In 1948, the United Nations General Assembly has adopted the
Universal Declaration of Human Rights proclaiming that basic rights and freedoms are inherent
and inalienable to every member of the human family. One of these rights is the right against
arbitrary deprivation of ones property.[16] Even when considered by other jurisdictions as being
a mere statement of aspirations and not of law, the Philippines Supreme Court has, as early as
1951, acknowledged the binding force of the Universal Declaration in Mejoff vs. Director of
Prisons, [17] Borovsky vs. Commissioner of Immigration, [18] Chirskoff vs. Commissioner of
Immigration, [19] and Andreu vs. Commissioner of Immigration.[20] In subsequent cases, [21] the
Supreme Court has adverted to the enumeration in the Universal Declaration in upholding
various fundamental rights and freedoms. The Court, in invoking the articles in the Universal
Declaration has relied both on the Constitutional provision stating that the Philippines adopts
the generally accepted principles of international law as being part of the law of the
nation[22] and, in no little degree, on the tenet that the acceptance of these generally
recognized principles of international law are deemed part of the law of the land not only as a
condition for, but as a consequence of, the countrys admission in the society of nations. [23] The
Universal Declaration constitutes an authoritative interpretation of the Charter of the highest
order, and has over the years become a part of customary international law.[24] It spells out in
considerable detail the meaning of the phrase human rights and fundamental freedoms, which
Member States have agreed to observe. The Universal Declaration has joined the Charter x x x
as part of the constitutional structure of the world community. The Declaration, as an
authoritative listing of human rights, has become a basic component of international
customary law, indeed binding all states and not only members of the United Nations.[25]
It might then be asked whether an individual is a proper subject of international law and
whether he can invoke a provision of international law against his own nation
state. International law, also often referred to as the law of nations, has in recent times been
defined as that law which is applicable to states in their mutual relations and to individuals in
their relations with states.[26] The individual as the end of the community of nations is a
member of the community, and a member has status and is not a mere object.[27] It is no longer
correct to state that the State could only be the medium between international law and its own
nationals, for the law has often fractured this link as and when it fails in its purpose. Thus, in the
areas of black and white slavery, human rights and protection of minorities, and a score of
other concerns over individuals, international law has seen such individuals, being members of
the international community, as capable of invoking rights and duties even against the nation
State.[28]
At bottom, the Bill of Rights (under the 1973 Constitution), during the interregnum from
26 February to 24 March 1986 remained in force and in effect not only because it was so
recognized by the 1986 People Power but also because the new government was bound by
International law to respect the Universal Declaration of Human Rights.
There would appear to be nothing irregular in the issuance of the warrant in question; it
was its implementation that failed to accord with that warrant. The warrant issued by the
Municipal Trial Court of Batangas, Branch 1, only listed the search and seizure of five (5) baby
armalite rifles M-16 and five (5) boxes of ammunition. The raiding team, however, seized the
following items: one (1) baby armalite rifle with two (2) magazines; forty (40) rounds of 5.56
ammunition; one (1) .45 caliber pistol; communications equipment; cash in the amount of
P2,870,000.00 and US $ 50,000.00; as well as jewelry and land titles. The Philippine Commission
on Good Government (PCGG) filed a petition for forfeiture of all the items seized under
Republic Act No. 1397, otherwise also known as an Act for the Forfeiture of Unlawfully
Acquired Property, against private respondents Elizabeth Dimaano and Josephus Q. Ramas. The
Sandiganbayan issued a resolution on 18 November 1991 dismissing the complaint, directing
the return of the illegally seized items, and ordering the remand of the case to the Ombudsman
for appropriate action. The resolution should be affirmed.
WHEREFORE, I concur in the results.

SEPARATE OPINION

TINGA, J.:

In a little less than a fortnight, I find myself privileged with my involvement in the final
deliberation of quite a few significant public interest cases. Among them is the present case.
With the well-studied and exhaustive main opinion of Justice Antonio Carpio, the scholarly
treatise that the separate opinion of Justice Reynato Puno is, and the equally incisive separate
opinion of Justice Jose Vitug, any other opinion may appear unnecessary. But the questions
posed are so challenging and the implications so far-reaching that I feel it is my duty to offer my
modest views.
To begin with, there is unanimity as regards the nullity of the questioned seizure of items
which are not listed in the search warrant. The disagreement relates to the juridical basis for
voiding the confiscation. At the core of the controversy is the question of whether the Bill of
Rights was in force and effect during the time gap between the establishment of the
revolutionary government as a result of the People Power Revolution in February 1986, and the
promulgation of the Provisional or Freedom Constitution by then President Corazon C. Aquino a
month thereafter.
According to the majority, during the interregnum the Filipino people continued to enjoy,
under the auspices of the Universal Declaration of Human Rights (Universal Declaration) and
the International Covenant on Civil and Political Rights (International Covenant), practically the
same rights under the Bill of Rights of the 1973 Constitution although the said Constitution
itself was no longer operative then. Justice Puno posits that during that period, the right against
unreasonable search and seizure still held sway, this time under the aegis of natural law.Justice
Vitug is of the view that the Bill of Rights under the 1973 Constitution remained in force and
effect mainly because the revolutionary government was bound to respect the Universal
Declaration.
 Interestingly, the case has necessitated a debate on jurisprudential thought.
Apparently, the majority adheres to the legal positivist theory championed by nineteenth
century philosopher John Austin, who defined the essence of law as a distinct branch of
morality or justice.[1] He and the English positivists believed that the essence of law is the
simple idea of an order backed by threats.[2]
On the other side is Justice Punos espousal of the natural law doctrine, which, despite its
numerous forms and varied disguises, is still relevant in modern times as an important tool in
political and legal thinking. Essentially, it has afforded a potent justification of the existing legal
order and the social and economic system it embodies, for by regarding positive law as based
on a higher law ordained by divine or natural reason, the actual legal system thus acquires
stability or even sanctity it would not otherwise possess.[3]
While the two philosophies are poles apart in content, yet they are somehow cognate. [4] To
illustrate, the Bill of Rights in the Constitution has its origins from natural law. Likewise a
natural law document is the Universal Declaration.[5]
A professor of Jurisprudence notes the inexorable trend to codify fundamental rights:

The emphasis on individual liberty and freedom has been a distinctive feature of western
political and legal philosophy since the seventeenth century, associated particularly with the
doctrine of natural rights.In the twentieth century this doctrine has resulted in the widespread
acceptance of the existence of fundamental rights built into the constitutional framework as a
bill of rights, as well as receiving recognition internationally by means of Covenants of Human
Rights agreed upon between states.

As such bill of rightswhether proffered as a statement of the inalienable and immutable rights
of man vested in him by natural law, or as no more than a set of social and economic rights
which the prevailing consensus and the climate of the times acknowledge to be necessary and
fundamental in a just societywill inevitably take the form of a catalogue of those rights, which
experience has taught modern western society to be crucial for the adequate protection of the
individual and the integrity of his personality. We may therefore expect, in one form or
another, the inclusion of a variety of freedoms, such as freedom of association, of religion, of
free speech and of a free press.[6]

In the case at bar, in the ultimate analysis both jurisprudential doctrines have found
application in the denouement of the case. The Bill of Rights in the Constitution, the Universal
Declaration and the International Covenant, great documents of liberty and human rights all,
are founded on natural law.
Going back to the specific question as to the juridical basis for the nullification of the
questioned confiscation, I respectfully maintain that it is no less than the Freedom
Constitution since it made the Bill of Rights in the 1973 Constitution operable from the
incipiency of the Aquino government.
In the well-publicised so-called OIC cases,[7] this Court issued an en
[8]
banc resolution dismissing the petitions and upholding the validity of the removal of the
petitioners who were all elected and whose terms of office under the 1973 Constitution were
to expire on June 30, 1986, on the basis of Article III, Section 2 of the Freedom Constitution,
which reads:

SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made
within a period of one year from February 25, 1986.
 This Court perforce extended retroactive effect to the above-quoted provision as the
petitions except one[9] were filed before the adoption of the Freedom Constitution on March
25, 1986. That being the case, with greater reason should the Bill of Rights in the 1973
Constitution be accorded retroactive application pursuant to the Freedom Constitution.
But the more precise statement is that it was the unmistakable thrust of the Freedom
Constitution to bestow uninterrupted operability to the Bill of Rights in the 1973
Constitution. For one thing, the title[10] itself of Proclamation No. 3 which ordained the
Freedom Constitution, as well as one of the vital premises or whereas clauses [11] thereof,
adverts to the protection of the basic rights of the people. For another, the Freedom
Constitution in Article 1, Section 1 mandates that the Bill of Rights and other provisions of the
Freedom Constitution specified therein remain in force and effect and are hereby adopted in
toto as part of this Provisional Constitution.
Of course, even if it is supposed that the Freedom Constitution had no retroactive effect or
it did not extend the effectivity of the Bill of Rights in the 1973 Constitution, still there would be
no void in the municipal or domestic law at the time as far as the observance of fundamental
rights is concerned. The Bill of Rights in the 1973 Constitution would still be in force,
independently of the Freedom Constitution, or at least the provisions thereof proscribing
unreasonable search and seizure[12] and excluding evidence in violation of the proscription.[13]
Markedly departing from the typical, the revolutionary government installed by President
Aquino was a benign government. It had chosen to observe prevailing constitutional restraints.
An eloquent proof was the fact that through the defunct Philippine Constabulary, it applied for
a search warrant and conducted the questioned search and seizure only after obtaining the
warrant. Furthermore, President Aquino definitely pledged in her oath of office to uphold and
defend the Constitution, which undoubtedly was the 1973 Constitution, including the Bill of
Rights thereof.
True, the Aquino government reorganized the government, including the judiciary and the
local officialdom. It did so to protect and stabilize the revolutionary government and not for the
purpose of trampling upon the fundamental rights of the people.
While arguably the due process clause was not observed in the case of the sequestration
orders issued by the Presidential Commission on Good Government, the fact remains that by
and large, the Aquino Government elected and managed to uphold and honor the Bill of Rights.
In light of the foregoing, I concur in the result.
EN BANC

[G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.

DECISION
BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the shares
of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation No. 50
dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The winning bidder, or the eventual strategic partner,
is to provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel.[2] In a
close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton
as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42
more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of
Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset
to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office
of the Government Corporate Counsel) are obtained.[3]

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.[4] In a
subsequent letter dated 10 October 1995 petitioner sent a managers check issued by Philtrust
Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on
prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order
enjoining respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former Chief
Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and
submits that the Manila Hotel has been identified with the Filipino nation and has practically
become a historical monument which reflects the vibrancy of Philippine heritage and culture. It
is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to release the full potential of the Filipino
people. To all intents and purposes, it has become a part of the national patrimony.[6]Petitioner
also argues that since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving 51% of the
shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10,
second par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony
and its business also unquestionably part of the national economy petitioner should be
preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) x x x x Thus, for the said provision to operate,
there must be existing laws to lay down conditions under which business may be done. [9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the
term national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as
cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events
that have transpired therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the Constitution is
addressed to the State, not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.
 Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only 51% of the
outstanding shares of the corporation, not the hotel building nor the land upon which the
building stands. Certainly, 51% of the equity of the MHC cannot be considered part of
the national patrimony.Moreover, if the disposition of the shares of the MHC is really contrary
to the Constitution, petitioner should have questioned it right from the beginning and not after
it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet
arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it
did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus
should fail as petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as the fundamental and paramount law
of the nation.[10] It prescribes the permanent framework of a system of government, assigns to
the different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is that
it is a supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.[11] Under the doctrine
of constitutional supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the framers
who merely establish an outline of government providing for the different departments of the
governmental machinery and securing certain fundamental and inalienable rights of
citizens.[12] A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing.Thus a constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws intended to
operate directly upon the people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like that of a legislative
body.Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing.If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of
the fundamental law.[14] This can be cataclysmic. That is why the prevailing view is, as it has
always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather than non-
self-executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions would be subordinated
to the will of the lawmaking body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute.[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not
self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As
against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et
cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it
appear that it is non-self-executing but simply for purposes of style. But, certainly, the
legislature is not precluded from enacting further laws to enforce the constitutional provision
so long as the contemplated statute squares with the Constitution. Minor details may be left to
the legislature without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its enforcement, provide a convenient
remedy for the protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing constitutional
provision does not render such a provision ineffective in the absence of such legislation. The
omission from a constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the constitution, further the
exercise of constitutional right and make it more available.[17] Subsequent legislation however
does not necessarily mean that the subject constitutional provision is not, by itself, fully
enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art.
XII is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing.[18] The argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to enact measures to encourage the formation
and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State
still needs legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its language require any legislation in
order to give preference to qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional provision may be self-executing
in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and only
placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights -
are simply not in point. Basco v. Philippine Amusements and Gaming Corporation[20] speaks of
constitutional provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the
youth in nation-building,[23] the promotion of social justice,[24] and the values of
education.[25]Tolentino v. Secretary of Finance[26] refers to constitutional provisions on social
justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites
provisions on the promotion of general welfare,[30] the sanctity of family life,[31] the vital role of
the youth in nation-building[32] and the promotion of total human liberation and
development.[33] A reading of these provisions indeed clearly shows that they are not judicially
enforceable constitutional rights but merely guidelines for legislation. The very terms of the
provisions manifest that they are only principles upon which legislations must be based. Res
ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable. When our
Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national
economy and patrimony, the State shall give preference to qualified Filipinos, it means just that
- qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if there is no
statute especially enacted to enforce such constitutional right, such right enforces itself by its
own inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -

The patrimony of the Nation that should be conserved and developed refers not
only to our rich natural resources but also to the cultural heritage of our race. It also
refers to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability or
faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage.[35] When the Constitution speaks of national patrimony, it refers not only to the
natural resources of the Philippines, as the Constitution could have very well used the
term natural resources, but also to the cultural heritage of the Filipinos.
 Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it
was restrictively an American hotel when it first opened in 1912, it immediately evolved to be
truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural Center of the
1930s. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host
to dignitaries and official visitors who are accorded the traditional Philippine hospitality. [36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and
Memory of a City.[37] During World War II the hotel was converted by the Japanese Military
Administration into a military headquarters. When the American forces returned to recapture
Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places
for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the hotel reopened
after a renovation and reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an
aspirant for vice-president was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs
and failures, loves and frustrations of the Filipinos; its existence is impressed with public
interest; its own historicity associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For
sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will
have actual control and management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we
cannot sustain respondents claim that the Filipino First Policy provision is not applicable since
what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And
the amendment would consist in substituting the words QUALIFIED FILIPINOS with
the following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have
to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we
not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer
only to individuals and not to juridical personalities or entities.
 MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as
intended by the proponents, will include not only individual Filipinos but also
Filipino-controlled entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
Filipino First policy.That means that Filipinos should be given preference in the
grant of concessions, privileges and rights covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo[43] -

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy x x x x This provision was never found in previous
Constitutions x x x x

The term qualified Filipinos simply means that preference shall be given to those citizens who
can make a viable contribution to the common good, because of credible competence and
efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since such an indiscriminate
preference would be counterproductive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a qualified foreigner and a qualified Filipino, the latter shall be chosen over the
former.

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent
GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel industry, or it has
significant equity ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the
subject provision is not self-executory and requires implementing legislation is quite
disturbing.The attempt to violate a clear constitutional provision - by the government itself - is
only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can be the source of
a judicial remedy.We cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of
Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal standards
for executive action. When the executive acts, it must be guided by its own understanding of
the constitutional command and of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole prerogative of Congress. If it were,
the executive would have to ask Congress, or perhaps the Court, for an interpretation every
time the executive is confronted by a constitutional command. That is not how constitutional
government operates.[45]

Respondents further argue that the constitutional provision is addressed to the State, not
to respondent GSIS which by itself possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried
out with the prior approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the
sale of the assets of respondents GSIS and MHC a state action. In constitutional jurisprudence,
the acts of persons distinct from the government are considered state action covered by the
Constitution (1) when the activity it engages in is a public function; (2) when the government is
so significantly involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action. It is evident that
the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the
second and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions
of power - legislative, executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three (3) branches of government. It is undeniable
that in this case the subject constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government instrumentality deriving its
authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary contracts, and
secured the requisite approvals. Since the Filipino First Policy provision of the Constitution
bestows preference on qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents
are not bound to make the award yet, nor are they under obligation to enter into one with the
highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates
of the 1987 Constitution the provisions of which are presumed to be known to all the bidders
and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision
is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the
bidding rules be nullified for being violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must conform with the fundamental law of the
land.Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are willing to match the highest bid
in terms of price per share.[47] Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder notwithstanding its submission
of a higher, or even the highest, bid. In fact, we cannot conceive of a strongerreason than the
constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will
have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of
a foreign firm the award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is
omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of
the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always open to
public scrutiny. These are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines
or with any of its agencies or instrumentalities is presumed to know his rights and obligations
under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to
Renong Berhad since petitioner was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited
to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the
qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case
before us, while petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept
its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps
the award has been finally made. To insist on selling the Manila Hotel to foreigners when there
is a Filipino group willing to match the bid of the foreign group is to insist that government be
treated as any other ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary agreements and documents to effect the
sale in accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of
this Court to impede and diminish, much less undermine, the influx of foreign investments. Far
from it, the Court encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is ordained by the
Constitution. The position of the Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa -

As scrupulously as it has tried to observe that it is not its function to substitute its judgment for
that of the legislature or the executive about the wisdom and feasibility of legislation economic
in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles
to economic progress and development x x x x in connection with a temporary injunction issued
by the Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major daily to the effect that that injunction
again demonstrates that the Philippine legal system can be a major obstacle to doing business
here.

Let it be stated for the record once again that while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as the judge of whether they are viable or
attainable, it is its bounden duty to make sure that they do not violate the Constitution or the
laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or
excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair
and ill-informed criticism.[48]

Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take precedence
over non-material values. A commercial, nay even a budgetary, objective should not be pursued
at the expense of national pride and dignity. For the Constitution enshrines higher and nobler
non-material values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any economic policy as
to draw itself beyond judicial review when the Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the people must
be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold
to the highest bidder solely for the sake of privatization. We are not talking about an ordinary
piece of property in a commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as a nation. We are
talking about a hotel where heads of states would prefer to be housed as a strong
manifestation of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant
role as an authentic repository of twentieth century Philippine history and culture. In this sense,
it has become truly a reflection of the Filipino soul - a place with a history of grandeur; a most
historical setting that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to
sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For,
indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be
less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a
nations soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all
that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the nations
cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be
preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous
and well-meaning Filipino? This is the plain and simple meaning of the Filipino First
Policyprovision of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation, will continue
to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary agreements and
documents to effect the sale, to issue the necessary clearances and to do such other acts and
deeds as may be necessary for the purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.

CONCURRING OPINION

PADILLA, J.:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a
bit more on the concept of national patrimony as including with in its scope and meaning
institutions such as the Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under national patrimony over which
qualified Filipinos have the preference, in ownership and operation. The Constitutional
provision on point states:
xxxxxxxxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.[1]
Petitioners argument, I believe, is well taken. Under the 1987 Constitution, national
patrimony consists of the natural resources provided by almighty God (Preamble) in our
territory (Article 1) consisting of land, sea, and air.[2] A study of the 1935 Constitution, where
the concept of national patrimony originated, would show that its framers decided to adopt the
even more comprehensive expression Patrimony of the Nation in the belief that the phrase
encircles a concept embracing not only the natural resources of the country but practically
everything that belongs to the Filipino people, the tangible and the material as well as the
intangible and the spiritual assets and possessions of the people. It is to be noted that the
framers did not stop with conservation. They knew that conservation alone does not spell
progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their
national patrimony.[3]
Moreover, the concept of national patrimony has been viewed as referring not only to our
rich natural resources but also to the cultural heritage of our race.[4]
There is no doubt in my mind that the Manila Hotel is very much a part of our national
patrimony and, as such, deserves constitutional protection as to who shall own it and benefit
from its operation. This institution has played an important role in our nations history, having
been the venue of many a historical event, and serving as it did, and as it does, as the Philippine
Guest House for visiting foreign heads of state, dignitaries, celebrities, and others. [5]
It is therefore our duty to protect and preserve it for future generations of Filipinos. As
President Manuel L. Quezon once said, we must exploit the natural resources of our country,
but we should do so with an eye to the welfare of the future generations. In other words, the
leaders of today are the trustees of the patrimony of our race. To preserve our national
patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first
framed our Constitution. Thus, in debating the need for nationalization of our lands and natural
resources, one expounded that we should put more teeth into our laws, and; not make the
nationalization of our lands and natural resources a subject of ordinary legislation but of
constitutional enactment.[6] To quote further: Let not our children be mere tenants and
trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs,
free from all foreign liens and encumbrances.[7]
Now a word on preference. In my view preference to qualified Filipinos, to be meaningful,
must refer not only to things that are peripheral, collateral, or tangential. It must touch and
affect the very heart of the existing order. In the field of public bidding in the acquisition of
things that pertain to the national patrimony, preference to qualified Filipinos must allow a
qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not
operate only when the bids of the qualified Filipino and the non-Filipino are equal in which
case, the award should undisputedly be made to the qualified Filipino. The Constitutional
preference should give the qualified Filipino an opportunity to match or equal the higher bid of
the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in
our country, stress is on the elimination of barriers to foreign trade and investments in the
country. While government agencies, including the courts should re-condition their thinking to
such a trend, and make it easy and even attractive for foreign investors to come to our shores,
yet we should not preclude ourselves from reserving to us Filipinos certain areas where our
national identity, culture and heritage are involved. In the hotel industry, for instance, foreign
investors have established themselves creditably, such as in the Shangri-La, the Nikko, the
Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock
of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the
intent of the Filipino people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.

Separate Concurring Opinion

VITUG, J.:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr.
Justice Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that (i)n the grants of rights,
priveleges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos[1] is self-executory. The provision verily does not need,
although it can obviously be amplified or regulated by, an enabling law or a set of rules.
Second, the term patrimony does not merely refer to the countrys natural resources but
also to its cultural heritage. A historical landmark, to use the words of Mr. Justice Justo P.
Torres, Jr., Manila Hotel has now indeed become part of Philippine Heritage.
Third, the act of the Government Service Insurance System (GSIS), a government entity
which derives its authorirty from the State, in selling 51% of its share in MHC should be
considered an act of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of preference to qualified Filipinos, I find it somewhat
difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the
particular case before us, the only meaningful preference, it seems, would really be to allow the
qualified Filipino to match the foreign bid for, as practical matter, I cannot see any bid that
literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of
the bids is such that it becomes hardly possible for the competing bids to stand exactly equal
which alone, under the dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment,
a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding
along with the peculiar constitutional implications of the proposed transaction. It is also
regrettable that the Court at times is seen to, instead, be the refuge for bureaucratic
inadequacies which create the perception that it even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.

Separate Concurring Opinion

MENDOZA, J.:

I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that [i]n the grant of rights, privileges and concessions covering the
national patrimony the State shall give preference to qualified Filipinos[1] is to allow petitioner
Philippine corporation to equal the bid of the Mlaysian firm Renong Berhad for the purchase of
the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a
qualified Filipino or Philippine corporation can be given preference in the enjoyment of a right,
privilege or concession given by the State, by favoring it over a foreign national or corporation.
Under the rules on public bidding of the government Service and Insurance System, if
petitioner and the Malaysian firm had offered the same price per share, priority [would be
given] to the bidder seeking the larger ownership interest in MHC,[2] so that if petitioner bid for
more shares, it would be preferred to the Malaysian corporation for that reason and not
because it is a Philippine corporation. Consequently, it is only in cases like the present one,
where an alien corporation is the highest bidder, that preferential treatment of the Philippine
corporation is mandated not by declaring it winner but by allowing it to match the highest bid
in terms of price per share before it is awarded the share of stocks.[3]That, to me, is what
preference to qualified Filipinos means in the context of this case by favoring Filipinos
whenever they are at a disadvantage vis-avis foreigners.
 This was the meaning given in Co Chiong v. Cuaderno[4] to a 1947 statute giving preference
to Filipino citizens in the lease of public market stalls.[5] This Court upheld the cancellation of
existing leases covering market stalls occupied by persons who were not Filipinos and the
award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of
Finance. Similarly, in Vda. de Salgado v. De la Fuente,[6] this Court sustained the validity of a
municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of
public market stalls and granting preference to Filipino citizens in the issuance of new licences
for the occupancy of the stalls. In Chua Lao v. Raymundo,[7] the preference granted under the
statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by
alien vendors in the public markets even it there were available other stalls as good as those
occupied by aliens. The law, apparently, is applicable whenever there is a conflict of interest
between Filipino applicants and aliens for lease of stalls in public markets, in which situation
the right to preference immediately arises.[8]
Our legislation on the matter thus antedated by a quarter of a century efforts began only in
the 1970s in America to realize the promise of equality, through affirmative action and reverse
discrimination programs designed to remedy past discrimination against colored people in such
areas as employment, contracting and licensing.[9] Indeed, in vital areas of our national
economy, there are situations in which the only way to place Filipinos in control of the national
economy as contemplated in the Constitution[10] is to give them preferential treatment where
they can at least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation
or deprive the country of the benefit of foreign capital on know-how. We are dealing here not
with common trades or common means of livelihood which are open to aliens in our
midst,[11] but with the sale of government property, which is like the grant of government
largess or benefits. In the words of Art. XII, 10, we are dealing here with rights, privileges, and
concessions covering the national economy and therefore no one should begrudge us if we give
preferential treatment to our citizens. That at any rate is the command of the Constitution. For
the Manila Hotel is a business owned by the Government. It is being privatized. Privatization
should result in the relinquishment of the business in favor of private individuals and groups
who are Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we
would be trading competence and capability for nationalism. Both petitioner and the Malaysian
firm are qualified, having hurdled the prequalification process.[12] It is only the result of the
public bidding that is sought to be modified by enabling petitioner to up its bid to equal the
highest bid.
Nor, finally, is there any basis for the suggestion that allow a Filipino bidder to match the
highest bid of an alien could encourage speculation, since all that a Filipino entity would then
do would be not to make a bid or make only a token one and, after it is known that a foreign
bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is
not possible under the rules on public bidding of the GSIS. Under these rules there is a
minimum bid required (P36.67 per share for a range of 9 to 15 million shares).[13] Bids below
the minimum will not be considered. On the other hand, if the Filipino entity, after passing the
prequalification process, does not submit a bid, he will not be allowed to match the highest bid
of the foreign firm because this is a privilege allowed only to those who have validly submitted
bids.[14] The suggestion is, to say the least, fanciful and has no basis in fact.
For the foregoing reasons, I vote to grant the petition.

Separate Concurring Opinion

TORRES, JR., J.:

 Constancy in law is not an attribute of judicious mind. I say this as we are confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak, on the side of
history. The reason perhaps is due to the belief that, in the words of Justice Oliver Wendell
Holmes, Jr., a page of history is worth a volume of logic.
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical
and cultural aspect within the meaning of the constitution and thus, forming part of the
patrimony of the nation.
Section 10, Article XII of the 1987 Constitution provides:
xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national
goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same
Constitution pertaining to Declaration of Principles and State Policies which ordain

The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos. (Sec. 19).

Interestingly, the matter of giving preference to qualified Filipinos was one of the highlights in
the 1987 Constitution Commission proceedings, thus:

xxx
MR. NOLLEDO. The Amendment will read: IN THE GRANT OF THE RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as
intended by the proponents, will include not only individual Filipinos but also
Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the
Constitutional Commission, p. 608).
MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee
and this body already approved what is known as the Filipino First policy which
was suggested by Commissioner de Castro. So that it is now in our Constitution
(Vol. IV, Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR NOLLEDO. In the grant of rights, privileges and concession covering the national
economy and patrimony, the State shall give preference to qualified Filipinos.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and
the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspect than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes. (Vol. III, p. 616, Records of the Constitutional
Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have not
reneged on this nationalist policy is articulated in one of the earliest cases, this Court said

The nationalistic tendency is manifested in various provisions of the Constitution. x x x It cannot

therefore be said that a law imbued with the same purpose and spirit underlying many of the
provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs.
Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and tradition are not legislated and is
the product of events, customs, usages and practices. It is actually a product of growth and
acceptance by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel
is witness to historic events (too numerous to mention) which shaped our history for almost 84
years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances
of the legal largesse which have given rise to this controversy, as I believe that has been
exhaustively discussed in the ponencia. Suffice it to say at this point, that the history of the
Manila Hotel should not be placed in the auction block of a purely business transaction, where
profits subverts the cherished historical values of our people.
As a historical landmark in this Pearl of the Orient Seas, it has its enviable tradition which,
in the words of the philosopher Salvador de Madarriaga, (tradition) is more of a river than a
stone, it keeps flowing, and one must view the flowing, and one must view the flow in both
directions. If you look towards the hill from which the river flows, you see tradition in the form
of forceful currents that push the river or people towards the future; and if you look the other
way, you progress.
Indeed, tradition and progress are the same, for progress depends on the kind of
tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial
history.
I grant, of course, that men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says He is always right who suspects that
he makes mistakes. On this note, I say that if I have to make a mistake, I would rather err
upholding the belief that the Filipino be first under his Constitution and in his own land.
I vote to GRANT the petition.

Separate Dissenting Opinion

PUNO, J.:

This is a petition for prohibition and mandamus filed by the Manila Prince Hotel
Corporation, a domestic corporation, to stop the government Service Insurance System (GSIS)
from selling the controlling shares of the Manila Hotel Corporation to a foreign
corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the
Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner
of the Manila Hotel which it operates through its subsidiary, the Manila Hotel
Corporation.Manila Hotel was included in the privatization program of the government. In
1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from
9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at
the first public bidding, the block of shares offered for sale was increased from a maximum of
30% to 51%.Also, the winning bidder, or the eventual strategic partner of the GSIS was required
to provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel. [1] The
proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding
rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic
corporation, and Renong Berhad, a Malaysian firm with ITT Sheraton as operator,
prequalified.[2]
The bidding rules and procedures entitled Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC Privatization provide:
I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:

First -- Pass the prequalification process;

Second -- Submit the highest bid on a price per share basis for the Block of Shares;

Third -- Negotiate and execute the necessary contracts with GSIS/MHC not later than October
23, 1995.

xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAY APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide management

expertise and/or an international marketing reservation system, and financial support
to strengthen the profitability and performance of The Manila Hotel. In this context,
the GSIS is inviting to the prequalification process any local and/or foreign
corporation, consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management expertise in the hotel industry; or

b. Significant equity ownership (i.e. board representation) in another hotel company; or

c. Overall management and marketing expertise to successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide access to the requisite
management expertise and/or international marketing/reservation system for The Manila
Hotel.

x x x.
D. PREQUALIFICATION DOCUMENTS
x x x.
 E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration Office between

9:00 AM to 4:00 PM during working days within the period specified in Section III. Each
set of documents consists of the following:

a. Guidelines and Procedures: Second Prequalification and Public Bidding of the

MHC Privatization

b. Confidential Information Memorandum: The Manila Hotel Corporation

c. Letter of Invitation to the Prequalification and Bidding Conference

xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at the Manila Hotel on the date
specified in Section III to allow the Applicant to seek clarifications and further
information regarding the guidelines and procedures. Only those who purchased the
prequalification documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be penalized if it does
not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The Applicant should submit 5 sets of the prequalification documents (1 original set
plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working
days within the period specified in Section III.

F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on
the Information Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the
overall qualifications of the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the results of the PBAC evaluation will be
final.
4. The Applicant shall be evaluated according to the criteria set forth below:

a. Business management expertise, track record, and experience

b. Financial capability

c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may deem appropriate.
6. The parties that prequalified in the first MHC public bidding ITT Sheraton, Marriot
International Inc., Renaissance Hotel International Inc., consortium of RCBC
Capital/Ritz Carlton may participate in the Public Bidding without having to undergo
the prequalification process again.
 G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of Qualified Bidders will
be posted at the Registration Office at the date specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by a member whose
qualification was a material consideration for being included in the shortlist is a
ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand

(15,300,000) shares of stock, representing Thirty Percent to Fifty-One Percent (30%-
51%) of the issued and outstanding shares of MHC, will be offered in the Public
Bidding by the GSIS. The Qualified Bidders will have the option of determining the
number of shares within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and management of The
Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid required on a
price per share basis for the Block of shares is Thirty-Six Pesos and Sixty-Seven
Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the minimum required will not
considered.

D. TRANSFER COSTS
xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy of which is
attached as Annex IV. The Official Bid Form must be properly accomplished in all
details; improper accomplishment may be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidders will submit the Official bid Form,
which will indicate the offered purchase price, in a sealed envelope marked
OFFICIAL BID.
F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be submitted along with
the bid in a separate envelop marked SUPPORTING DOCUMENTS:

1. WRITTEN AUTHORITY TO BID (UNDER OATH)

If the Qualified Bidder is a corporation, the representative of the Qualified Bidder

should submit a Board resolution which adequately authorizes such representative to
 bid for and in behalf of the corporation with full authority to perform such acts
necessary or requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of the

Consortium/Joint Venture should submit a Board Resolution authorizing one of its
members and such members representative to make the bid on behalf of the group
with full authority to perform such acts necessary or requisite to bind the Qualified
Bidder.

2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,000), in the
Philippine currency as Bid Security in the form of:

i. Managers cheque or unconditional demand draft payable to the Government Service

Insurance System and issued by a reputable banking institution duly licensed to do
business in the Philippines and acceptable to GSIS; or

ii. Stand-by letter of credit issued by a reputable banking institution acceptable to the
GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have a Bid Security; or

ii. The Bid Security accompanying the bid is for less than the required amount.

c. If the Bid Security is in the form of a managers check or unconditional demand draft,
the interest earned on the Bid Security will be for the account of GSIS.
d. If the Qualified Bidder becomes the Winning Bidder/Strategic Partner, the Bid
Security will be applied as the downpayment on the Qualified Bidders offered
purchase price.
e. The Bid Security of the Qualified Bidder will be returned immediately after the
Public Bidding if the Qualified bidder is not declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable
to negotiate and execute with GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other types of contract specified by the
Highest Bidder in its strategic plan for The Manila Hotel.
g. The Bid Security of the highest Bidder will be forfeited in favor of GSIS if the Highest
Bidder, after negotiating and executing the Management Contract, International
Marketing/Reservation System Contact or other types of contract specified by the
Highest Bidder in its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23,
1995; or

ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for any other reason.

G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the following location:
New GSIS Headquarters Building

Financial Center, Reclamation Area

Roxas Boulevard, Pasay City, Metro Manila

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and
all bids and supporting requirements. Representatives from the Commission on
Audit and COP will be invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid Form. The
accomplished Official Bid Form should be submitted in a sealed envelope marked
OFFICIAL BID.
4. The Qualified Bidder should submit the following documents in another sealed
envelope marked SUPPORTING BID DOCUMENTS

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked OFFICIAL BID and SUPPORTING BID DOCUMENTS
must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00
PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be
accepted after the closing time. Opened or tampered bids shall not be accepted.
6. The Secretariat will log and record the actual time of submission of the two sealed
envelopes. The actual time of submission will also be indicated by the Secretariat on
the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid
boxes provided for the purpose. These boxes will be in full view of the invited
public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding , the PBAC will
open all sealed envelopes marked SUPPORTING BID DOCUMENTS for screening,
evaluation and acceptance.Those who submitted incomplete/insufficient
documents or document/s which is/are not substantially in the form required by
PBAC will be disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked OFFICIAL BID will be opened at 3:00 PM. The name of
the bidder and the amount of its bid price will be read publicly as the envelopes are
opened.
3. Immediately following the reading of the bids, the PBAC will formally announce the
highest bid and the Highest Bidder.
4. The highest bid will be determined on a price per share basis. In the event of a tie
wherein two or more bids have the same equivalent price per share, priority will be
given to the bidder seeking the larger ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed period; or

b. There is only one (1) bid that is submitted and acceptable to the PABC.
 I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 or the Highest Bidder will lose the right to purchase the Block of Shares and
GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management
Contract, International Marketing/Reservation system Contract or other type of
contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If
the Highest Bidder is intending to provide only financial support to The Manila
Hotel, a separate institution may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS,
a copy of which will be distributed to each of the Qualified Bidder after the
prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management Contract for The Manila
Hotel, the maximum levels for the management fee structure that GSIS/MHC are
prepared to accept in the Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross revenues. (1)

b. Incentive fee: Maximum of 8.0% of gross operating profit (1) after deducting
undistributed overhead expenses and the basic management fee.

c. Fixed component of the international marketing/reservation system fee: Maximum

of 2.0% of gross room revenues. (1) The Applicant should indicate in its Information
Package if it is wishes to charge fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for the hotel
management fees to facilitate the negotiations with the Highest Bidder for the
Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The Manila Hotel should
determine whether or not the management fee structure above is acceptable before
submitting their prequalification documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to the other Qualified Bidders that have validly submitted bids
provided that these Qualified are willing to match the highest bid in terms of price
per share.
2. The order of priority among the interested Qualified Bidders will be in accordance
with the equivalent price per share of their respective bids in the Public Bidding, i.e.
first and second priority will be given to the Qualified Bidders that submitted the
second and third highest bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the Winning
Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the
offered purchase price for the Block of Shares after deducting the Bid Security
applied as downpayment.
2. All payments should be made in the form of a Managers Cheque or unconditional
Demand Draft, payable to the Government Service Insurance System, issued by a
reputable banking institution licensed to do business in the Philippines and
acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all applications, waive
any formality therein, or accept such application as may be considered most
advantageous to the GSIS. The GSIS similarly reserves the right to require the
submission of any additional information from the Applicant as the PBAC may deem
necessary.
2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance
of the bids and call for a new public bidding under amended rules, and without any
liability whatsoever to any or all the Qualified Bidders, except the obligation to
return the Bid Security.
3. The GSIS reserves the right to reset the date of the prequalification/bidding
conference, the deadline for the submission of the prequalification documents, the
date of the Public Bidding or other pertinent activities at least three (3) calendar
days prior to the respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it has on the Block of
Shares.
5. All documents and materials submitted by the Qualified Bidders, except the Bid
Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The
Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed
to accept and abide by these results.
7. The GSIS will be held free and harmless from any liability, suit or allegation arising
out of the Public Bidding by the Qualified Bidders who have participated in the
Public Bidding.[3]
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per
share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000
shares. The GSIS declared Renong Berhad the highest bidder and immediately returned
petitioners bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to
match the bid price of Renong Berhad. It requested that the award be made to itself citing the
second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for
thirty-three million pesos (P33,000,000.00) as bid security.
 Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and
conditions of the contract and technical agreements in the operation of the Hotel, refused to
entertain petitioners request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on
October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the
Constitution[4] on the National Economy and Patrimony which provides:
xxx

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

x x x.
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing
provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10, paragraph 2 of Article XII is self-executing, whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term State, hence, mandated to implement section
10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a
foreign corporation, in the sale of the controlling shares of the Manila Hotel
Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding
policies and principles upon which is built the substantial foundation and general framework of
the law and government.[5] As a rule, its provisions are deemed self-executing and can be
enforced without further legislative action.[6] Some of its provisions, however, can be
implemented only through appropriate laws enacted by the Legislature, hence not self-
executing.
To determine whether a particular provision of a Constitution is self-executing is a hard
row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes
submerged in its language. A searching inquiry should be made to find out if the provision is
intended as a present enactment, complete in itself as a definitive law, or if it needs future
legislation for completion and enforcement.[7] The inquiry demands a micro-analysis of the text
and the context of the provision in question.[8]
Courts as a rule consider the provisions of the Constitution as self-executing,[9] rather than
as requiring future legislation for their enforcement.[10] The reason is not difficult to discern.For
if they are not treated as self-executing, the mandate of the fundamental law ratified by the
sovereign people can be easily ignored and nullified by Congress.[11] Suffused with wisdom of
the ages is the unyielding rule that legislative actions may give breath to constitutional rights
but congressional inaction should not suffocate them.[12]
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests,
searches and seizures,[13] the rights of a person under custodial investigation,[14] the rights of an
accused,[15] and the privilege against self-incrimination.[16] It is recognized that legislation is
unnecessary to enable courts to effectuate constitutional provisions guaranteeing the
fundamental rights of life, liberty and the protection of property.[17] The same treatment is
accorded to constitutional provisions forbidding the taking or damaging of property for public
use without just compensation.[18]
Contrariwise, case law lays down the rule that a constitutional provision is not self-
executing where it merely announces a policy and its language empowers the Legislature to
prescribe the means by which the policy shall be carried into effect.[19] Accordingly, we have
held that the provisions in Article II of our Constitution entitled Declaration of Principles and
State Policies should generally be construed as mere statements of principles of the
State.[20] We have also ruled that some provisions of Article XIII of Social Justice and Human
Rights, [21] and Article XIV on Education, Science and Technology, Arts, Culture and
Sports[22] cannot be the basis of judicially enforceable rights. Their enforcement is addressed to
the discretion of Congress though they provide the framework of legislation [23] to effectuate
their policy content.[24]
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article
XII of the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when
the national interest dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of enterprises whose capital is
wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and priorities.

The first paragraph directs Congress to reserve certain areas of investments in the country [25] to
Filipino citizens or to corporations sixty per cent[26] of whose capital stock is owned by
Filipinos. It further commands Congress to enact laws that will encourage the formation and
operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the
second paragraph orders the entire State to give preference to qualified Filipinos in grant of
rights and privileges covering the national economy and patrimony. The third paragraph also
directs the State to regulate foreign investments in line with our national goals and well-set
priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain areas
of investments in the country and to encourage the formation and operation of wholly-owned
Filipino enterprises. The right granted by the provision is clearly still in ease. Congress has to
breath life to the right by means of legislation. Parenthetically, this paragraph was plucked from
section 3, Article XIV of the 1973 Constitution.[27] The provision in the 1973 Constitution
affirmed our ruling in the landmark case of Lao Ichong v. Hernandez,[28] where we upheld the
discretionary authority of Congress of Filipinize certain areas of investments.[29] By reenacting
the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to
nationalize certain areas of investments in favor of Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State
and not to Congress alone which is but one of the three great branches of our
government.Their coverage is also broader for they cover the national economy and patrimony
and foreign investments within [the] national jurisdiction and not merely certain areas of
investments.Beyond debate, they cannot be read as granting Congress the exclusive power to
implement by law the policy of giving preference to qualified Filipinos in the conferral of rights
and privileges covering our national economy and patrimony. Their language does not suggest
that any of the State agency or instrumentality has the privilege to hedge or to refuse its
implementation for any reason whatsoever. Their duty to implement is unconditional and it is
now. The second and the third paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled Declaration of
Principles and State Policies. Its Section 19 provides that [T]he State shall develop a self-reliant
and independent national economy effectively controlled by Filipinos. It engrafts the all-
important Filipino First Policy in our fundamental law and by the use of the mandatory word
shall, directs its enforcement by the whole State without any pause or a half-pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel
Corporation involves the disposition of part of our national patrimony. The records of the
Constitutional Commission show that the Commissioners entertained the same view as to its
meaning. According to Commissioner Nolledo, patrimony refers not only to our rich natural
resources but also to the cultural heritage of our race.[30] By this yardstick, the sale of Manila
Hotel falls within the coverage of the constitutional provision giving preferential treatment to
qualified Filipinos in the grant of rights involving our national patrimony. The unique value to
the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value to
hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo,[31] the hotel first
opened on July 4, 1912 as a first-class Hotel built by the American Insular Government for
Americans living in, or passing through, Manila while travelling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction. For sometime, it was
exclusively used by American and Caucasian travelers and served as the official guesthouse of
the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the
Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it
served as military headquarters and lodging fo the highest-ranking officers from Tokyo. It was
at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation
of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents
and kings, premiers and potentates, as well as glamorous international film and sports
celebrities were house in the Hotel. It was also the situs of international conventions and
conferences.In the local scene, it was the venue of historic meetings, parties and conventions of
political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of
Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a
biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to
Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act.
No. 4846, The Cultural Properties Preservation and Protection Acts, merely provides a
procedure whereby a particular cultural property may be classified a national cultural treasure
or an important cultural property.[32] Approved on June 18, 1966 and amended by P.D. 374 in
1974, the law is limited in its reach and cannot be read as the exclusive law implementing
section 10, Article XII of the 1987 Constitution. to be sure, the law does not equate cultural
treasure and cultural property as synonymous to the phrase patrimony of the nation.
The third issue is whether the constitutional command to the State includes the
respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and
controlled corporation that administers funds that come from the monthly contributions of
government employees and the government.[33] The funds are held in trust for a distinct
purpose which cannot be disposed of indifferently.[34] They are to be used to finance the
retirement, disability and life insurance benefits of the employees and the administrative and
operational expenses of the GSIS. [35] Excess funds, however, are allowed to be invested in
business and other ventures for the benefit of the employees. [36] It is thus contended that the
GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act
beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution.
The submission is unimpressive. The GSIS in not a pure private corporation. It is essentially
a public corporation created by Congress and granted an original charter to serve a public
purpose. It is subject to the jurisdictions of the Civil Service Commission.[37] and the Commission
on Audit.[38] As a state-owned and controlled corporation, it is skin-bound to adhere to the
policies spelled out in the Constitution especially those designed to promote the general
welfare of the people. One of these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of the phrase qualified Filipinos and
their preferential right. The Constitution desisted from defining their contents. This is as it
ought to be for a Constitution only lays down flexible policies and principles which can be bent
to meet todays manifest needs and tomorrows unmanifested demands. Only a constitution
strung with elasticity can grow as a living constitution.
Thus, during the deliberation in the Constitutional Commission, Commissioner Nolledo
brushed aside a suggestion to define the phrase qualified Filipinos. He explained that present
and prospective laws will take care of the problem of its interpretation, viz:
xxx
THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the
word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or the prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.
MR. RODRIGO. If we say, PREFERENCE TO QUALIFIED FILIPINOS, it can be understood
as giving preference to qualified Filipinos as against Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the intention of the proponents. The
committee has accepted the amendment.
x x x.
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word laws should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-
making power. In the case at bar, the bidding rules and regulations set forth the standards to
measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed
that petitioner qualified to bid as did Renong Berhad.[39]
Thus, we come to the critical issue of the degree preference which GSIS should have
accorded petitioner, qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the
controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid or Renong Berhad.
 With due respect, I cannot sustain petitioners submission. I prescind from the premise that
the second paragraph of section 10, Article XII of the Constitution is pro-Filipino but not anti-
Alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for
it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the
national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not
prohibited from granting these rights, privileges and concessions to foreigners if the act will
promote the wealth of the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the
stellar task of our State policy-makers is to maintain a creative tension between
two desiderata - - first, the need to develop our economy and patrimony with the help of
foreigners it necessary, and, second, the need to keep our economy controlled by
Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right to serve the general
welfare, it must have a malleable content that can be adjusted by our policy-makers to meet
the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be
determined by degree as time dictates and circumstances warrant. The lesser the need for alien
assistance, the greater the degree of the right of preference can be given to Filipinos and vice
versa.
Again, it should be stressed that the right and the duty to determine the degree of this
privilege at any given time is addressed to the entire State. While under our constitutional
scheme, the right primarily belongs to Congress as the lawmaking department of our
government, other branches of government, and all their agencies and instrumentalities, share
the power to enforce this state policy. Within the limits of their authority, they can act or
promulgate rules and regulations defining the degree of this right of preference in cases where
they have to make grants involving the national economy and judicial duty. On the other hand,
our duty is to strike down acts of the State that violate the policy.
To date, Congress has not enacted a law defining the degree of the preferential
right. Consequently, we must turn to the rules and regulations of respondents Committee on
Privatization and GSIS to determine the degree of preference that petitioner in entitled to a
qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that
they are silent on the degree of preferential right to be accorded a qualified Filipino
bidder. Despite their silence, however, they cannot be read to mean that they do not grant any
degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is
deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that
we interpret rules to save them from unconstitutionality, I submit that the right of preference
of petitioner arises only if it tied the bid of Renong Berhad. In that instance, all things stand
equal, and petitioner, as a qualified Filipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to
match the bid of Renong Berhad. Petitioners submission must be supported by the rules but
even if we examine the rules inside-out a thousand times, they can not justify the claimed
right. Under the rules, the right to match the highest bid arises only if the for any reason, the
highest bidder cannot be awarded the block of shares x x x. No reason has arisen that will
prevent the award to Renong Berhad. It qualified as a bidder. It complied with the procedure of
bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the
rules say this decision is final. It deserves the award as a matter of right for the rules clearly did
not give to the petitioner as a qualified Filipino the privilege to match the higher bid of a
foreigner. What the rules did not grant, petitioner cannot demand. Our sympathies may be
with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on a
galaxy of facts and factors whose determination belongs to the province of the policy-making
branches and agencies of the State. We are duty-bound to respect that determination even if
we differ with the wisdom of their judgment. The right they grant may be little but we must
uphold the grant for as long as the right of preference is not denied. It is only when the State
action amounts to a denial of the right that the Court can come in and strike down the denial as
unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong
Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules
and regulations do not provide that a qualified Filipino bidder can match the winning bid after
submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners
qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules
which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard
them when it loses. If sustained, petitioners stance will wreak havoc of the essence of
bidding. Our laws, rules and regulations require highest bidding to raise as much funds as
possible for the government to maximize its capacity to deliver essential services to our
people. This is a duty that must be discharged by Filipinos and foreigners participating in a
bidding contest and the rules are carefully written to attain this objective. Among others,
bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner the privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give a highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don
Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an
alien in his own land. The Constitution has embodied Rectos counsel as a state policy and our
decision should be in sync with this policy. But while the Filipino First policy requires that we
incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write
laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a
foreigner after writing the laws and the rules. After the laws are written, they must be obeyed
as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We ca be pro-Filipino without unfairness to foreigners.
I vote to dismiss the petition.

Separate Dissenting Opinion

PANGANIBAN, J.:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato
S. Puno, may I just add:
1. The majority contends the Constitution should be interpreted to mean that, after a
bidding process is concluded, the losing Filipino bidder should be given the right to equal the
highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply
states that in the grant of rights x x x covering the national economy and patrimony, the State
shall give preference to qualified Filipinos. The majority concedes that there is no law defining
the extent or degree of such preference. Specifically, no statute empowers a losing Filipino
bidder to increase his bid and equal that of the winning foreigner. In the absence of such
empowering law, the majoritys strained interpretation, I respectfully submit, constitutes
unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can
lose and where no foreigner can win. Only in the Philippines!
2. Aside from being prohibited by the Constitution, such judicial legislation is short-sighted
and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other
countries in the guise of reverse comity or worse, unabashed retaliation to discriminate against
us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the
higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other
foreigners to remain unchallenged by their nationals. The majoritys thesis will thus marginalize
Filipinos as pariahs in the global marketplace with absolutely no chance of winning any bidding
outside our country. Even authoritarian regimes and hermits kingdoms have long ago found out
that unfairness, greed and isolation are self-defeating and in the long-term self-destructing.
The moral lesson here is simple: Do to do unto others what you do not want others to do
unto you.
3. In the absence of a law specifying the degree or extent of the Filipino First policy of the
Constitution, the constitutional preference for the qualified Filipinos may be allowed only
where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing
him and without being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores
are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC.
and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process
clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and
void." For reasons to be more specifically set forth, such judgment must be reversed, there
being a failure of the requisite showing to sustain an attack against its validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel
del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second
petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as
such "charged with the general power and duty to enforce ordinances of the City of Manila and
to give the necessary orders for the faithful execution and enforcement of such ordinances."
(par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion
and protection of the interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city authorities,
regularly paying taxes, employing and giving livelihood to not less than 2,500 person and
representing an investment of more than P3 million."1 (par. 2). It was then alleged that on June
13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on
June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor
of the City of Manila. (par. 3).

After which the alleged grievances against the ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact
insofar as it would regulate motels, on the ground that in the revised charter of the City of
Manila or in any other law, no reference is made to motels; that Section 1 of the challenged
ordinance is unconstitutional and void for being unreasonable and violative of due process
insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for
second class motels; that the provision in the same section which would require the owner,
manager, keeper or duly authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or letting any room or other
quarter to any person or persons without his filling up the prescribed form in a lobby open to
public view at all times and in his presence, wherein the surname, given name and middle
name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay
and the number of companions in the room, if any, with the name, relationship, age and sex
would be specified, with data furnished as to his residence certificate as well as his passport
number, if any, coupled with a certification that a person signing such form has personally filled
it up and affixed his signature in the presence of such owner, manager, keeper or duly
authorized representative, with such registration forms and records kept and bound together, it
also being provided that the premises and facilities of such hotels, motels and lodging houses
would be open for inspection either by the City Mayor, or the Chief of Police, or their duly
authorized representatives is unconstitutional and void again on due process grounds, not only
for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and
uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against
self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes
and requiring the maintenance of certain minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant and laundry similarly offends against the
due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies
to the portion of the ordinance requiring second class motels to have a dining room; that the
provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old
from being accepted in such hotels, motels, lodging houses, tavern or common inn unless
accompanied by parents or a lawful guardian and making it unlawful for the owner, manager,
keeper or duly authorized representative of such establishments to lease any room or portion
thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of
certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the
penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction
would, cause the automatic cancellation of the license of the offended party, in effect causing
the destruction of the business and loss of its investments, there is once again a transgression
of the due process clause.

There was a plea for the issuance of preliminary injunction and for a final judgment declaring
the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a
writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said
Ordinance No. 4760 from and after July 8, 1963.

In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the
hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a
denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth
that the petition did fail to state a cause of action and that the challenged ordinance bears a
reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper
exercise of the police power and that only the guests or customers not before the court could
complain of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary injunction ex parte was
contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts
dated September 28, 1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines,
both with offices in the City of Manila, while the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful
execution and enforcement of such ordinances;
 3. That the petitioners are duly licensed to engage in the business of operating hotels
and motels in Malate and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance
No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then
the acting City Mayor of Manila, in the absence of the respondent regular City Mayor,
amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances
of the City of Manila besides inserting therein three new sections. This ordinance is
similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in
its 4th Indorsement dated February 15, 1963 (Annex B);

5. That the explanatory note signed by then Councilor Herminio Astorga was submitted
with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of
which is attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the
City of Manila.1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid
on the presumption of the validity of the challenged ordinance, the burden of showing its lack
of conformity to the Constitution resting on the party who assails it, citing not only U.S. v.
Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted
point by point the arguments advanced by petitioners against its validity. Then barely two
weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in
detail what was set forth in the petition, with citations of what they considered to be applicable
American authorities and praying for a judgment declaring the challenged ordinance "null and
void and unenforceable" and making permanent the writ of preliminary injunction issued.

After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed:
"The only remaining issue here being purely a question of law, the parties, with the nod of the
Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court."
It does appear obvious then that without any evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional grounds of the challenged ordinance,
dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore,
null and void." It made permanent the preliminary injunction issued against respondent Mayor
and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional
doctrines of a fundamental character ought to have admonished the lower court against such a
sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand,
consistently with what has hitherto been the accepted standards of constitutional adjudication,
in both procedural and substantive aspects.

Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of
the elected representatives of the people cannot be lightly set aside. The councilors must, in
the very nature of things, be familiar with the necessities of their particular municipality and
with all the facts and circumstances which surround the subject and necessitate action. The
local legislative body, by enacting the ordinance, has in effect given notice that the regulations
are essential to the well being of the people x x x . The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of personal or property rights under the
guise of police regulation.2

It admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is
not the case here. The principle has been nowhere better expressed than in the leading case
of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation prescribed is unreasonable
and hence deprives the plaintiff of due process of law. As underlying questions of fact may
condition the constitutionality of legislation of this character, the resumption of
constitutionality must prevail in the absence of some factual foundation of record for
overthrowing the statute." No such factual foundation being laid in the present case, the lower
court deciding the matter on the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance set aside.

Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as
being repugnant to the due process clause of the Constitution. The mantle of protection
associated with the due process guaranty does not cover petitioners. This particular
manifestation of a police power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and unsupported by
anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of
police power which has been properly characterized as the most essential, insistent and the
least limitable of powers,4extending as it does "to all the great public needs."5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the state if it could be
deprived or allowed itself to be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent
and plenary power in the State which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7

There is no question but that the challenged ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate
of prostitution, adultery and fornication in Manila traceable in great part to the existence of
motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and
thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then
proposes to check the clandestine harboring of transients and guests of these establishments
by requiring these transients and guests to fill up a registration form, prepared for the purpose,
in a lobby open to public view at all times, and by introducing several other amendatory
provisions calculated to shatter the privacy that characterizes the registration of transients and
guests." Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and at the same time,
to increase "the income of the city government." It would appear therefore that the stipulation
of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently
for it.

It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a
license tax for and regulating the maintenance or operation of public dance halls; 9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and
prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a
place where opium is smoked or otherwise used,15 all of which are intended to protect public
morals.

On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to
prescribe regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of such police power insofar as it
may affect the life, liberty or property of any person is subject to judicial inquiry. Where such
exercise of police power may be considered as either capricious, whimsical, unjust or
unreasonable, a denial of due process or a violation of any other applicable constitutional
guaranty may call for correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection is raised
to the question of due process.16 There is no controlling and precise definition of due process. It
furnishes though a standard to which the governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter, from the imputation
of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly it has been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play. 17 It exacts fealty "to
those strivings for justice" and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect [democratic] traditions of legal and
political thought."18 It is not a narrow or "technical conception with fixed content unrelated to
time, place and circumstances,"19 decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."20 Questions of due process are
not to be treated narrowly or pedantically in slavery to form or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet

what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary
and capricious exercise of authority. It would seem that what should be deemed unreasonable
and what would amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific, the Municipal Board
of the City of Manila felt the need for a remedial measure. It provided it with the enactment of
the challenged ordinance. A strong case must be found in the records, and, as has been set
forth, none is even attempted here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process requirement. Nor does it lend any
semblance even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on
due process grounds to single out such features as the increased fees for motels and hotels, the
curtailment of the area of freedom to contract, and, in certain particulars, its alleged
vagueness.

Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter,
first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500
yearly. It has been the settled law however, as far back as 1922 that municipal license fees
could be classified into those imposed for regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or enterprises and for revenue purposes
only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for non-useful
occupations are also incidental to the police power and the right to exact a fee may be implied
from the power to license and regulate, but in fixing amount of the license fees the municipal
corporations are allowed a much wider discretion in this class of cases than in the former, and
aside from applying the well-known legal principle that municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere
with such discretion. The desirability of imposing restraint upon the number of persons who
might otherwise engage in non-useful enterprises is, of course, generally an important factor in
the determination of the amount of this kind of license fee. Hence license fees clearly in the
nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for
the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable. 23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme Court that taxation may be made to implement
the state's police power. Only the other day, this Court had occasion to affirm that the broad
taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so
levied is for public purposes, just and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is
given to municipal corporations in determining the amount," here the license fee of the
operator of a massage clinic, even if it were viewed purely as a police power measure. 26 The
discussion of this particular matter may fitly close with this pertinent citation from another
decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement
of the ordinance could deprive them of their lawful occupation and means of livelihood
because they can not rent stalls in the public markets. But it appears that plaintiffs are also
dealers in refrigerated or cold storage meat, the sale of which outside the city markets under
certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the
community may be deprived of their present business or a particular mode of earning a living
cannot prevent the exercise of the police power. As was said in a case, persons licensed to
pursue occupations which may in the public need and interest be affected by the exercise of
the police power embark in these occupations subject to the disadvantages which may result
from the legal exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes
it unlawful for the owner, manager, keeper or duly authorized representative of any hotel,
motel, lodging house, tavern, common inn or the like, to lease or rent room or portion thereof
more than twice every 24 hours, with a proviso that in all cases full payment shall be charged,
call for a different conclusion. Again, such a limitation cannot be viewed as a transgression
against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was
intended to curb the opportunity for the immoral or illegitimate use to which such premises
could be, and, according to the explanatory note, are being devoted. How could it then be
arbitrary or oppressive when there appears a correspondence between the undeniable
existence of an undesirable situation and the legislative attempt at correction. Moreover,
petitioners cannot be unaware that every regulation of conduct amounts to curtailment of
liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which
runs through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual and for the greater good of the peace and order
of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good x x x The liberty of the citizen may be restrained
in the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of
the enactment of said law, and the state in order to promote the general welfare may interfere
with personal liberty, with property, and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our Government the rights
of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual will fall into
slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all.29

It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living
principle. The policy of laissez faire has to some extent given way to the assumption by the
government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial
of due process?

Lastly, there is the attempt to impugn the ordinance on another due process ground by
invoking the principles of vagueness or uncertainty. It would appear from a recital in the
petition itself that what seems to be the gravamen of the alleged grievance is that the
provisions are too detailed and specific rather than vague or uncertain. Petitioners, however,
point to the requirement that a guest should give the name, relationship, age and sex of the
companion or companions as indefinite and uncertain in view of the necessity for determining
whether the companion or companions referred to are those arriving with the customer or
guest at the time of the registry or entering the room With him at about the same time or
coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt
as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of
its owners or operators; another proviso which from their standpoint would require a guess as
to whether the "full rate of payment" to be charged for every such lease thereof means a full
day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the
ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has
been consistently upheld that what makes a statute susceptible to such a charge is an
enactment either forbidding or requiring the doing of an act that men of common intelligence
must necessarily guess at its meaning and differ as to its application. Is this the situation before
us? A citation from Justice Holmes would prove illuminating: "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

That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law principles
so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the
appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted
forthwith. With costs.
EN BANC
WHITE LIGHT CORPORATION, G.R. No. 122846
TITANIUM CORPORATION and
STA. MESA TOURIST & DEVE- Present:
LOPMENT CORPORATION,
Petitioners, PUNO, C.J.
QUISUMBING,
YNARES SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
CITY OF MANILA, represented by DE CASTRO,
MAYOR ALFREDO S. LIM, BRION, and
Respondent. PERALTA, JJ.
Promulgated:
January 20, 2009

x---------------------------------------------------------------------------x

DECISION

TINGA, J.:

With another city ordinance of Manila also principally involving the tourist district as subject,
the Court is confronted anew with the incessant clash between government power and
individual liberty in tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,[1] the Court affirmed the nullification of a city ordinance barring
the operation of motels and inns, among other establishments, within the Ermita-Malate area.
The petition at bar assails a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or wash up rates for
such abbreviated stays. Our earlier decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal protection of law. The same parameters
apply to the present petition.
This Petition[2] under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal
of the Decision[3] in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, An Ordinance Prohibiting Short-Time Admission,
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging
Houses, Pension Houses, and Similar Establishments in the City of Manila (the Ordinance).

I.

The facts are as follows:

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the
Ordinance.[4] The Ordinance is reproduced in full, hereunder:

SECTION 1. Declaration of Policy. It is hereby the declared policy of

the City Government to protect the best interest, health and welfare, and the
morality of its constituents in general and the youth in particular.

SEC. 2. Title. This ordinance shall be known as An Ordinance

prohibiting short time admission in hotels, motels, lodging houses, pension
houses and similar establishments in the City of Manila.

SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
wash-up rate or other similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses and similar
establishments in the City of Manila.

SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance

and charging of room rate for less than twelve (12) hours at any given time or
the renting out of rooms more than twice a day or any other term that may
be concocted by owners or managers of said establishments but would mean
the same or would bear the same meaning.

SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a
fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion
of the court; Provided, That in case of [a] juridical person, the president, the
manager, or the persons in charge of the operation thereof shall be
liable: Provided, further, That in case of subsequent conviction for the same
offense, the business license of the guilty party shall automatically be
cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not

consistent with or contrary to this measure or any portion hereof are hereby
deemed repealed.

SEC. 7. Effectivity. This ordinance shall take effect immediately upon

approval.
 Enacted by the city Council of Manila at its regular session today, November
10, 1992.

Approved by His Honor, the Mayor on December 3, 1992.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed
a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or
temporary restraining order ( TRO)[5] with the Regional Trial Court (RTC) of Manila, Branch
9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor
Lim.[6] MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as
owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential
Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers
wash up rates for stays of only three hours.

On December 21, 1992, petitioners White Light Corporation (WLC), Titanium

Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to
intervene and to admit attached complaint-in-intervention[7] on the ground that the Ordinance
directly affects their business interests as operators of drive-in-hotels and motels
in Manila.[8] The three companies are components of the Anito Group of Companies which
owns and operates several hotels and motels in Metro Manila.[9]

On December 23, 1992, the RTC granted the motion to intervene.[10] The RTC also
notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the
Rules of Court. On the same date, MTDC moved to withdraw as plaintiff.[11]

On December 28, 1992, the RTC granted MTDC's motion to withdraw.[12] The RTC issued a TRO
on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance. [13] The
City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise
of police power.[14]
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist
from the enforcement of the Ordinance.[15] A month later, on March 8, 1993, the Solicitor
General filed his Comment arguing that the Ordinance is constitutional.

During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question.[16] On October 20, 1993, the RTC
rendered a decision declaring the Ordinance null and void. The dispositive portion of the
decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City
of Manila is hereby declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made

permanent.

SO ORDERED.[17]

The RTC noted that the ordinance strikes at the personal liberty of the individual
guaranteed and jealously guarded by the Constitution.[18] Reference was made to the provisions
of the Constitution encouraging private enterprises and the incentive to needed investment, as
well as the right to operate economic enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless be consummated by simply
paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v.
Intermediate Appellate Court,[19] where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-province ban on the transport
of carabaos and carabeef.

The City later filed a petition for review on certiorari with the Supreme Court.[20] The
petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the
Court treated the petition as a petition for certiorari and referred the petition to the Court of
Appeals.[21]

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of
police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on
cities, among other local government units, the power:
 [To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses
and other similar establishments, including tourist guides and transports.[22]

The Ordinance, it is argued, is also a valid exercise of the power of the City under Article
III, Section 18(kk) of the Revised Manila Charter, thus:

to enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity and the promotion of
the morality, peace, good order, comfort, convenience and general welfare
of the city and its inhabitants, and such others as be necessary to carry into
effect and discharge the powers and duties conferred by this Chapter; and to
fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine and
imprisonment for a single offense.[23]

Petitioners argued that the Ordinance is unconstitutional and void since it violates the
right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is
an unreasonable and oppressive interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.[24] First, it held that the Ordinance did not violate the right to privacy or the
freedom of movement, as it only penalizes the owners or operators of establishments that
admit individuals for short time stays. Second, the virtually limitless reach of police power is
only constrained by having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful
method since the establishments are still allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its constituents in general. Finally, as held
in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by
law.

TC, WLC and STDC come to this Court via petition for review on certiorari.[25] In their petition
and Memorandum, petitioners in essence repeat the assertions they made before the Court of
Appeals. They contend that the assailed Ordinance is an invalid exercise of police power.

II.
We must address the threshold issue of petitioners standing. Petitioners allege that as owners
of establishments offering wash-up rates, their business is being unlawfully interfered with by
the Ordinance. However, petitioners also allege that the equal protection rights of their clients
are also being interfered with. Thus, the crux of the matter is whether or not these
establishments have the requisite standing to plead for protection of their patrons' equal
protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that party's participation
in the case. More importantly, the doctrine of standing is built on the principle of separation of
powers,[26] sparing as it does unnecessary interference or invalidation by the judicial branch of
the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly
from the Constitution.[27] The constitutional component of standing doctrine incorporates
concepts which concededly are not susceptible of precise definition.[28] In this jurisdiction, the
extancy of a direct and personal interest presents the most obvious cause, as well as the
standard test for a petitioner's standing.[29] In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional standing requirements of
injury, causation, and redressability in Allen v. Wright.[30]
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.[31]

For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,[32] the United States Supreme Court
wrote that: We have recognized the right of litigants to bring actions on behalf of third parties,
provided three important criteria are satisfied: the litigant must have suffered an injury-in-fact,
thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute;
the litigant must have a close relation to the third party; and there must exist some hindrance
to the third party's ability to protect his or her own interests." [33] Herein, it is clear that the
business interests of the petitioners are likewise injured by the Ordinance. They rely on the
patronage of their customers for their continued viability which appears to be threatened by
the enforcement of the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties Union in the United
States may also be construed as a hindrance for customers to bring suit.[34]

American jurisprudence is replete with examples where parties-in-interest were allowed

standing to advocate or invoke the fundamental due process or equal protection claims of
other persons or classes of persons injured by state action. In Griswold v. Connecticut,[35] the
United States Supreme Court held that physicians had standing to challenge a reproductive
health statute that would penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:

The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving those
who have this kind of confidential relation to them."[36]

An even more analogous example may be found in Craig v. Boren,[37] wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males
under the age of 21 and to females under the age of 18. The United States High Court explained
that the vendors had standing "by acting as advocates of the rights of third parties who seek
access to their market or function."[38]

Assuming arguendo that petitioners do not have a relationship with their patrons for the
former to assert the rights of the latter, the overbreadth doctrine comes into play. In
overbreadth analysis, challengers to government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes infringing on the freedom of speech, the
overbreadth doctrine applies when a statute needlessly restrains even constitutionally
guaranteed rights.[39] In this case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that based on the allegations in the
petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their
clients to patronize their establishments for a wash-rate time frame.

III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association,
Inc., v. Hon. City Mayor of Manila.[40] Ermita-Malate concerned the City ordinance requiring
patrons to fill up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to minimize certain practices
deemed harmful to public morals. A purpose similar to the annulled ordinance in City
of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-
Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by
the Court.

The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case, wherein there is no
wholesale ban on motels and hotels but the services offered by these establishments have
been severely restricted. At its core, this is another case about the extent to which the State
can intrude into and regulate the lives of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of
Manila has held that for an ordinance to be valid, it must not only be within the corporate
powers of the local government unit to enact and pass according to the procedure prescribed
by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general
and consistent with public policy; and (6) must not be unreasonable.[41]

The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units by the Local Government
Code through such implements as the general welfare clause.
A.
 Police power, while incapable of an exact definition, has been purposely veiled in
general terms to underscore its comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response as the conditions warrant.[42] Police power is based
upon the concept of necessity of the State and its corresponding right to protect itself and its
people.[43] Police power has been used as justification for numerous and varied actions by the
State. These range from the regulation of dance halls,[44]movie theaters,[45] gas stations[46] and
cockpits.[47] The awesome scope of police power is best demonstrated by the fact that in its
hundred or so years of presence in our nations legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the
covered establishments for illicit sex, prostitution, drug use and alike. These goals, by
themselves, are unimpeachable and certainly fall within the ambit of the police power of the
State. Yet the desirability of these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of
Macchiavelli, and, sometimes even, the political majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or
equal protection questions, the courts are naturally inhibited by a due deference to the co-
equal branches of government as they exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet another form of caution emerges. If the
Court were animated by the same passing fancies or turbulent emotions that motivate many
political decisions, judicial integrity is compromised by any perception that the judiciary is
merely the third political branch of government. We derive our respect and good standing in
the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is
no surer way to that end than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and far-reaching
constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as

guaranteed under Section 1, Article III of the Constitution. Due process evades a precise
definition.[48] The purpose of the guaranty is to prevent arbitrary governmental encroachment
against the life, liberty and property of individuals. The due process guaranty serves as a
protection against arbitrary regulation or seizure. Even corporations and partnerships are
protected by the guaranty insofar as their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but
distinct restrictions on government, "procedural due process" and "substantive due
process." Procedural due process refers to the procedures that the government must follow
before it deprives a person of life, liberty, or property.[49] Procedural due process concerns itself
with government action adhering to the established process when it makes an intrusion into
the private sphere. Examples range from the form of notice given to the level of formality of a
hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation
of arbitrary government action, provided the proper formalities are followed. Substantive due
process completes the protection envisioned by the due process clause. It inquires whether the
government has sufficient justification for depriving a person of life, liberty, or property.[50]

The question of substantive due process, moreso than most other fields of law, has
reflected dynamism in progressive legal thought tied with the expanded acceptance of
fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted
with a more rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency with which it has been
utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to
the prerogatives of the State. Instead, the due process clause has acquired potency because of
the sophisticated methodology that has emerged to determine the proper metes and bounds
for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is
best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme
Court in U.S. v. Carolene Products.[51] Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the legislature unless there is a discrimination
against a discrete and insular minority or infringement of a fundamental right. [52] Consequently,
two standards of judicial review were established: strict scrutiny for laws dealing with freedom
of the mind or restricting the political process, and the rational basis standard of review for
economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted

by the U.S. Supreme Court for evaluating classifications based on gender [53] and
legitimacy.[54] Immediate scrutiny was adopted by the U.S. Supreme Court in Craig,[55] after the
Court declined to do so in Reed v. Reed.[56] While the test may have first been articulated in
equal protection analysis, it has in the United States since been applied in all substantive due
process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges.[57] Using the rational basis examination, laws or ordinances are upheld if
they rationally further a legitimate governmental interest.[58] Under intermediate review,
governmental interest is extensively examined and the availability of less restrictive measures is
considered.[59] Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving
that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of governmental interest brought to justify the
regulation of fundamental freedoms.[60] Strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal protection.[61] The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental rights such as
suffrage,[62] judicial access[63] and interstate travel.[64]

If we were to take the myopic view that an Ordinance should be analyzed strictly as to
its effect only on the petitioners at bar, then it would seem that the only restraint imposed by
the law which we are capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most deferential standard the
rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke
as well the constitutional rights of their patrons those persons who would be deprived of
availing short time access or wash-up rates to the lodging establishments in question.
 Viewed cynically, one might say that the infringed rights of these customers were are
trivial since they seem shorn of political consequence. Concededly, these are not the sort of
cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still,
the Bill of Rights does not shelter gravitas alone. Indeed, it is those trivial yet fundamental
freedoms which the people reflexively exercise any day without the impairing awareness of
their constitutional consequence that accurately reflect the degree of liberty enjoyed by the
people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a
Ten Commandments-style enumeration of what may or what may not be done; but rather an
atmosphere of freedom where the people do not feel labored under a Big Brother presence as
they interact with each other, their society and nature, in a manner innately understood by
them as inherent, without doing harm or injury to others.

D.

The rights at stake herein fall within the same fundamental rights to liberty which we
upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights,
thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm

to include "the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man
to enjoy the facilities with which he has been endowed by his Creator, subject
only to such restraint as are necessary for the common welfare."[[65]] In
accordance with this case, the rights of the citizen to be free to use his faculties
in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[[66]]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to
clarify the meaning of "liberty." It said:

While the Court has not attempted to define with

exactness the liberty . . . guaranteed [by the Fifth and Fourteenth
Amendments], the term denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage
in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as essential
to the orderly pursuit of happiness by free men. In a Constitution
 for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.[67] [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of
sexual behavior. The City asserts before this Court that the subject establishments have gained
notoriety as venue of prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus became the ideal
haven for prostitutes and thrill-seekers.[68] Whether or not this depiction of a mise-en-scene of
vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected [69] will be curtailed as well, as it was
in the City of Manila case. Our holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to

unity. His separateness, his isolation, are indefeasible; indeed, they
are so fundamental that they are the basis on which his civic
obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to
himself. If he surrenders his will to others, he surrenders himself. If
his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself
is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized

in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal
life of the citizen.[70]

We cannot discount other legitimate activities which the Ordinance would proscribe or
impair. There are very legitimate uses for a wash rate or renting the room out for more than
twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the
power is momentarily out in their homes. In transit passengers who wish to wash up and rest
between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any
person or groups of persons in need of comfortable private spaces for a span of a few hours
with purposes other than having sex or using illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a
product and the petitioners of lucrative business ties in with another constitutional requisite for
the legitimacy of the Ordinance as a police power measure. It must appear that the interests of
the public generally, as distinguished from those of a particular class, require an interference
with private rights and the means must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive of private rights.[71] It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of private rights can work.
More importantly, a reasonable relation must exist between the purposes of the measure and
the means employed for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be permitted to be
arbitrarily invaded.[72]

Lacking a concurrence of these requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is
subject to judicial review when life, liberty or property is affected.[73] However, this is not in any
way meant to take it away from the vastness of State police power whose exercise enjoys the
presumption of validity.[74]

Similar to the Comelec resolution requiring newspapers to donate advertising space to

candidates, this Ordinance is a blunt and heavy instrument.[75] The Ordinance makes no
distinction between places frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities
are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible to illicit patronage and
subject them without exception to the unjustified prohibition.

The Court has professed its deep sentiment and tenderness of the Ermita-Malate area,
its longtime home,[76] and it is skeptical of those who wish to depict our capital city the Pearl of
the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in
Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all
evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila,
and vice is a common problem confronted by the modern metropolis wherever in the world.
The solution to such perceived decay is not to prevent legitimate businesses from offering a
legitimate product. Rather, cities revive themselves by offering incentives for new businesses to
sprout up thus attracting the dynamism of individuals that would bring a new grandeur
to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could
in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing
the proliferation of prostitutes and drug dealers through active police work would be more
effective in easing the situation. So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use. These measures would have minimal intrusion
on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that
the Ordinance can easily be circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in
fact collect wash rates from their clientele by charging their customers a portion of the rent for
motel rooms and even apartments.

IV.
We reiterate that individual rights may be adversely affected only to the extent that
may fairly be required by the legitimate demands of public interest or public welfare.The State
is a leviathan that must be restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the
rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates
and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is
sworn to protect.[77] The notion that the promotion of public morality is a function of the State
is as old as Aristotle.[78] The advancement of moral relativism as a school of philosophy does not
de-legitimize the role of morality in law, even if it may foster wider debate on which particular
behavior to penalize. It is conceivable that a society with relatively little shared morality among
its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields
an adequate accommodation of different interests.[79]

To be candid about it, the oft-quoted American maxim that you cannot legislate
morality is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase
is more accurately interpreted as meaning that efforts to legislate morality will fail if they are
widely at variance with public attitudes about right and wrong.[80] Our penal laws, for one, are
founded on age-old moral traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of
the right-wrong distinction, but also the advent of fundamental liberties as the key to the
enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with
any more extensive elaboration on our part of what is moral and immoral, but from our
recognition that the individual liberty to make the choices in our lives is innate, and protected
by the State. Independent and fair-minded judges themselves are under a moral duty to uphold
the Constitution as the embodiment of the rule of law, by reason of their expression of consent
to do so when they take the oath of office, and because they are entrusted by the people to
uphold the law.[81]

Even as the implementation of moral norms remains an indispensable complement to

governance, that prerogative is hardly absolute, especially in the face of the norms of due
process of liberty. And while the tension may often be left to the courts to relieve, it is possible
for the government to avoid the constitutional conflict by employing more judicious, less
drastic means to promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals

is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED.
Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.

RESOLUTION

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at
the present time and under present circumstances pose a threat to national interest and
welfare and in prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state and
order of society, the remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny
them not only the inherent right of citizens to return to their country of birth but also the
protection of the Constitution and all of the rights guaranteed to Filipinos under the
Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M.
Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines,
and enjoin respondents from implementing President Aquino's decision to bar the return of the
remains of Mr. Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion
for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts
that "the 'formal' rights being invoked by the Marcoses under the label 'right to return',
including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the
decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed
the factual scenario under which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming
that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts of the world." [Comment, p.
1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.

That the President has powers other than those expressly stated in the Constitution is nothing
new. This is recognized under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the specific
executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed
the difference between the sweeping language of article II, section 1, and the
conditional language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2 and 31 ought
 therefore to be considered, as intended merely to specify the principal articles
implied in the definition of execution power; leaving the rest to flow from the
general grant of that power, interpreted in confomity with other parts of the
Constitution...

In Myers v. United States, the Supreme Court accepted Hamilton's

proposition, concluding that the federal executive, unlike the Congress, could
exercise power from sources not enumerated, so long as not forbidden by the
constitutional text: the executive power was given in general terms,
strengthened by specific terms where emphasis was regarded as appropriate,
and was limited by direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or
elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159
(1978).]

And neither can we subscribe to the view that a recognition of the President's implied or
residual powers is tantamount to setting the stage for another dictatorship. Despite petitioners'
strained analogy, the residual powers of the President under the Constitution should not be
confused with the power of the President under the 1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires immediate action, he
may, in order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution
and the power of the President under the 1973 Constitution pursuant to Amendment No. 6.
First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then,
Amendment No. 6 refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her)
oath of office, is to protect and promote the interest and welfare of the people. Her decision to
bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present
time and under present circumstances is in compliance with this bounden duty. In the absence
of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in
arriving at this decision, the Court will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It is
only a dead body waiting to be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse
that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and
buried deep and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have rights.
For instance, our Revised Penal Code prohibits the commission of libel against a deceased
individual. And even if we were to assume the non- existence anymore of his human rights
what about the human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that
is, if we do not allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of resistance against the well-intentioned
aim of the administration. Upon the other hand, to grant the petition may well soften the
hearts of the oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion. There
I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to
add a few statements to that dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and
die in this country, The remaining right of this Filipino that cries out for vindication at this late
hour is the right to be buried in this country. Will the respondents be allowed to complete the
circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in
my dissenting opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer should be in
the negative if we are to avoid the completely indefensible act of denying a Filipino the last
right to blend his mortal remains with a few square feet of earth in the treasured land of his
birth.

Those who would deny this Filipino the only constitutional and human right that can be
accorded him now say that the constitutional and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos, because he was a dictator and he plundered
the country. This is the most irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we believe) that the Constitution and all
its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, religious or
agnostic as long as he is a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to
be buried into mother earth, where there are no protests, "demos", or even dissents, where
the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security,
his supporters would pose that threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with
Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is constitutionally and
humanly entitled, Marcos' supporters would be deprived of an otherwise potent argumentso
conducive to mass protests and even violencethat their Idol has been cruelly denied the right
to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In the first place, one cannot overlook that the right
of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after
his death. It was vigorously asserted long before his death. But, more importantly, the right
of every Filipino to be buried in his country, is part of a continuing right that starts from birth
and ends only on the day he is finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in this country, but I submit that these conditions
must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in
this country NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any
way affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation, Regrettably, they have
ignored the constitutional dimension of the problem rooted in the ageless and finest tradition
of our people for respect and deference to the dead. What predictably follows will be a
continuing strife, among our people, of unending hatred, recriminations and retaliations. God
save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in
the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland,
and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed,
that:

3. Contrary to petitioners view, it cannot be denied that the President, upon

whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would
have also completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently,
the majority itself is not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances
given to foreign investors by no less than the President, of the political and economic stability
of the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos
relatives to bury Marcos in his homeland. As for the former, let them get their just deserts here
too. And let the matter rest.

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of
Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had
hoped. By and large, it has been met with only passing interest if not outright indifference from
the people. Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already
moribund that feeble threat has died with him. As the government stresses, he has been
reduced to a non-person (which makes me wonder why it is still afraid of him). His cadaver is
not even regarded as a symbol of this or that or whatever except by his fanatical followers. It is
only a dead body waiting to be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse
that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and
buried deep and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have rights.
For instance, our Revised Penal Code prohibits the commission of libel against a deceased
individual. And even if we were to assume the non- existence anymore of his human rights
what about the human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or
political and military destabilization. In fact, the converse appears to be nearer the truth, that
is, if we do not allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of resistance against the well-intentioned
aim of the administration. Upon the other hand, to grant the petition may well soften the
hearts of the oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not strained." Surely, compassion is the better part of
government. Remove mercy, and you remove the best reason against civil strife, which if not
abated can turn our country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this
case had been rendered, was pre-empted and foreseen in my original dissenting opinion. There
I said that the first cogent and decisive proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die and be buried in this country." I have only to
add a few statements to that dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and
die in this country, The remaining right of this Filipino that cries out for vindication at this late
hour is the right to be buried in this country. Will the respondents be allowed to complete the
circle of denying the constitutional and human right of Mr. Marcos to travel which, as stated in
my dissenting opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer should be in
the negative if we are to avoid the completely indefensible act of denying a Filipino the last
right to blend his mortal remains with a few square feet of earth in the treasured land of his
birth.

Those who would deny this Filipino the only constitutional and human right that can be
accorded him now say that the constitutional and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos, because he was a dictator and he plundered
the country. This is the most irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we believe) that the Constitution and all
its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, religious or
agnostic as long as he is a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious
threat to national security and public safety. What threat? As pointed out in my dissenting
opinion, the second cogent and decisive proposition in this case is that respondents have not
presented any "hard evidence" (factual bases) or convincing proof of such threat. "All we have
are general conclusions of national security and public safety' in avoidance of a specific,
demandable and enforceable constitutional and basic human right to return." Recent events
have, to my mind, served to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to
be buried into mother earth, where there are no protests, "demos", or even dissents, where
the rule that reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security,
his supporters would pose that threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with
Marcos deprived of his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is constitutionally and
humanly entitled, Marcos' supporters would be deprived of an otherwise potent argumentso
conducive to mass protests and even violencethat their Idol has been cruelly denied the right
to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In the first place, one cannot overlook that the right
of Mr. Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after
his death. It was vigorously asserted long before his death. But, more importantly, the right
of every Filipino to be buried in his country, is part of a continuing right that starts from birth
and ends only on the day he is finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in this country, but I submit that these conditions
must, as a fundamental postulate, recognize the right of the man, as a Filipino, to be buried in
this country NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any
way affecting my respect and regard for my brethren and sisters in the majority, I am deeply
concerned and greatly disturbed that, with their decision banning a dead Marcos from burial in
this country, they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation, Regrettably, they have
ignored the constitutional dimension of the problem rooted in the ageless and finest tradition
of our people for respect and deference to the dead. What predictably follows will be a
continuing strife, among our people, of unending hatred, recriminations and retaliations. God
save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in
the Republic of the Philippines of former President Ferdinand E. Marcos, subject to such
conditions as the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated
before, I can not allow personal emotions to soften my "hardened impartiality" and deny, as a
consequence, the rights of the ex-President's bereaved to bury his remains in his homeland,
and for them to return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed,
that:

3. Contrary to petitioners view, it cannot be denied that the President, upon

whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power.
The Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law.
Had the fundamental law intended a presidential imprimatur, it would have said so. It would
have also completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And
especially so, because the President is the caretaker of the military establishment that has,
several times over, been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose a threat to national security. And apparently,
the majority itself is not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does
not, so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The
military has said over and over that Marcos followers are not capable of successful
destabilization effort. And only this morning (October 27, 1989), media reported the assurances
given to foreign investors by no less than the President, of the political and economic stability
of the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos
relatives to bury Marcos in his homeland. As for the former, let them get their just deserts here
too. And let the matter rest.