Due Process

EN BANC

[G.R. No. L-7995. May 31, 1957.]

LAO H. ICHONG, in his own behalf and in behalf of other alien

residents, corporations and partnerships adversely affected
by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ,
Secretary of Finance, and MARCELINO SARMIENTO, City
Treasuer of Manila, respondent.

Ozaeta, Lichauco & Picazo and Sycip, Quisumbing, Salazar &

Associates for petitioner.
Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de
Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S.
Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

SYLLABUS

1. CONSTITUTIONAL LAW; POLICE POWER; NATURE AND SCOPE. —

Police power is far-reaching in scope, and it is almost impossible to limit
its sweep. It derives its existence from the very existence of the State
itself, and does not need to be expressed or defined in its scope. It is
said to be co-extensive with self - protection and survival, and as such it
is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern
democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and scope
of police power has become almost boundless, just as the fields of public
interest and public welfare have become almost all-embracing and have
transcended human foresight.
2. ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE
CONSTITUTION; UNIVERSALITY OF APPLICATION. — The constitutional
guarantees in Section I, Article III, of the Constitution, which embody the
essence of individual liberty and freedom in democracies, are not limited
to citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality (Yiek
Wo vs. Hopkins, 30 L. ed., 220, 226).
3. ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR PROPERTY; TEST OR
STANDARD. — The conflict between police power and the guarantees of
due process and equal protection of the laws is more apparent than real.
Properly related, the power and the guarantees are supposed to coexist.
The balancing is the essence, or the indispensable means for the
attainment of legitimate aspirations of any democratic society. There
can be no absolute power, whoever exercises it, for that would be
tyranny. Yet there can neither be absolute liberty, for that would mean
license and anarchy. So the State can deprive persons of life, liberty or
property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The
police power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and
means. And if distinction or classification has been made, there must be
a reasonable basis for said distinction.
4. ID.; EQUAL PROTECTION OF THE LAW CLAUSE; WHEN NOT
DEEMED INFRINGED BY LEGISLATION. — The equal protection of the law
clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation, which is limited either in the object to which it is
directed or by territory within which it is to operate. It does not demand
absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as
to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction
between those who fall within such class and those who do not (2
Cooley, Constitutional Limitations, 824-825).
5. ID.; ID.; LEGISLATIVE POWER TO MAKE DISTINCTION AND
CLASSIFICATION AMONG PERSONS; CITIZENSHIP AS GROUND FOR
CLASSIFICATION. — The Power of the legislature to make distinctions
and classifications among persons is not curtailed or denied by the equal
protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis.
Citizenship is a legal and valid ground for classification.
6. ID.; ID.; NATIONALIZATION OF RETAIL TRADE; CLASSIFICATION
IN REPUBLIC ACT NO. 1180 ACTUAL, REAL AND REASONABLE. — The
classification in the law of retail traders into nationals and aliens is
actual, real and reasonable. All persons of one class are treated alike,
and it cannot be said that the classification is patently unreasonable and
unfounded. Hence, it is the duty of this Court to declare that the
legislature acted within its legitimate prerogative and it cannot declare
that the act transcends the limits of equal protection established by the
Constitution.
7. ID.; ID.; ID.; ID.; TEST OF REASONABLENESS. — The law in
question is deemed absolutely necessary to bring about the desired
legislative objective, i.e., to free the national economy from alien control
and dominance. It is not necessarily unreasonable because it affects
private rights and privileges (II Am. Jur., pp. 1080-1081). The test of
reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect.
Judged by this test, the disputed legislation, which is not merely
reasonable but actually necessary, must be considered not to have
infringed the constitutional limitation of reasonableness.
 8. ID.; ID.; ID.; ID.; ID.; REPUBLIC ACT NO. 1180 TOLERANT AND
REASONABLE. — A cursory study of the provisions of the law
immediately reveals how tolerant and reasonable the Legislature has
been. The law is made prospective and recognizes the right and privilege
of those already engaged in the occupation to continue therein during
the rest of their lives; and similar recognition of the right to continue is
accorded associations of aliens. The right or privilege is denied only to
persons upon conviction of certain offenses.
9. ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE ASPIRATIONS OF A
PEOPLE NOT BEYOND THE LIMITS OF LEGISLATIVE AUTHORITY. — If
political independence is a legitimate aspiration of a people, then
economic independence is none of less legitimate. Freedom and liberty
are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or
country. The removal and eradication of the shackles of foreign
economic control and domination is one of the noblest motives that a
national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional
limitation of due process. The attainment of a legitimate aspiration of a
people can never be beyond the limits of legislative authority.
10. ID.; ID.; ID.; NATIONALISTIC TENDENCY MANIFESTED IN THE
CONSTITUTION. — Nationalistic tendency is manifested in various
provisions of the Constitution. The nationalization of the retail trade is
only a continuance of the nationalistic protective policy laid down as a
primary objective of the Constitution. 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.
11. ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF LEGISLATIVE
DISCRETION NOT SUBJECT TO JUDICIAL REVIEW. — The exercise of
legislative discretion is not subject to judicial review. The Court will not
inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of
the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold
views inconsistent with the wisdom of the law, it may not annul the
legislation if not palpably in excess of the legislative power.
12. ID.; TITLES OF BILLS; PROHIBITION AGAINST DUPLICITY;
PRESENCE OF DUPLICITY NOT SHOWN IN TITLE OR PROVISIONS
OF REPUBLIC ACT NO. 1180. — What Section 21(1) of Article VI of the
Constitution prohibits is duplicity, that is, if its title completely fails to
apprise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297). A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true
that the term "regulate" does not and may not readily and at first glance
convey the idea of "nationalization" and "prohibition", which terms
express the two main purposes and objectives of the law. But "regulate"
is a broader term than either prohibition or nationalization. Both of these
have always been included within the term "regulation".
13. ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE OF BILL. —
The general rule is for the use of general terms in the title of a bill; the
title need not be an index to the entire contents of the law (I Sutherland,
Statutory Construction, Sec. 4803, p. 345). The above rule was followed
when the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit".
14. ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL DIRECTIVE
REGARDING SUBJECT OF A BILL. — One purpose of the constitutional
directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its
provisions, and prevent the enactment into law of matters which have
not received the notice, action and study of the legislators or of the
public. In case at bar it cannot be claimed that the legislators have not
been apprised of the nature of the law, especially the nationalization and
prohibition provisions. The legislators took active interest in the
discussion of the law, and a great many of the persons affected by the
prohibition in the law conducted a campaign against its approval. It
cannot be claimed, therefore, that the reasons for declaring the law
invalid ever existed.

15. ID.; INTERNATIONAL TREATIES AND OBLIGATIONS NOT

VIOLATED BY REPUBLIC ACT No. 1180; TREATIES SUBJECT TO
QUALIFICATION OR AMENDMENT BY SUBSEQUENT LAW. — The law does
not violate international treaties and obligations. The United Nations
Charter imposes no strict or legal obligations regarding the rights and
freedom of their subjects (Jans Kelsen, The Law of the United Nations,
1951 ed., pp. 29-32), and the Declaration of Human Rights contains
nothing more than a mere recommendation, or a common standard of
achievement for all peoples and all nations. The Treaty of Amity between
the Republic of the Philippines and the Republic of China of April 18,
1947 guarantees equality of treatment to the Chinese nationals "upon
the same terms as the nationals of any other country". But the nationals
of China are not discriminated against because nationals of all other
countries, except those of the United States, who are granted special
rights by the Constitution, are all Prohibited from engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the
treaty is always subject to qualification or amendment by a subsequent
law (U.S. vs. Thompson, 258, Fed. 257, 260), and the same may never
curtail or restrict the scope of the police power of the State (Palston vs.
Pennsylvania 58 L. ed., 539).

DECISION

LABRADOR, J : p

I. The case and the issue, in general

This Court has before it the delicate task of passing upon the
validity and constitutionality of a legislative enactment, fundamental and
far-reaching in significance The enactment poses questions of due
process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the
disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse, the
law purports to protect citizen and country from the alien retailer.
Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic independence
and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the
national retailer from the competing dominance of the alien, so that the
country and the nation may be free from a supposed economic
dependence and bondage. Do the facts and circumstances justify the
enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. The main
provisions of the Act are: (1) a prohibition against persons, not citizens of
the Philippines, and against associations, partnerships, or corporations
the capital of which are not wholly owned by citizens of the Philippines,
from engaging directly or indirectly in the retail trade; (2) an exception
from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engage
therein, unless their licenses are forfeited in accordance with the law,
until their death or voluntary retirement in case of natural persons, and
for ten years after the approval of the Act or until the expiration of term
in case of juridical persons; (3) an exception therefrom in favor of
citizens and juridical entities of the United States; (4) a provision for the
forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, economic control weights and measures and
labor and other laws relating to trade, commerce and industry; (5) a
prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail
business, (6) a provision requiring aliens actually engaged in the retail
business to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other matters, the
nature of the business, their assets and liabilities and their offices and
principal offices of juridical entities; and (7) a provision allowing the
heirs of aliens now engaged in the retail business who die, to continue
such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based — Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien
residents, corporations and partnerships adversely affected by the
provisions of Republic Act No. 1180, brought this action to obtain a
judicial declaration that said Act is unconstitutional, and to enjoin the
Secretary of Finance and all other persons acting under him, particularly
city and municipal treasurers, from enforcing its provisions. Petitioner
attacks the constitutionality of the Act, contending that: (1) it denies to
alien residents the equal protection of the laws and deprives them of
their liberty and property without due process of law; (2) the subject of
the Act is not expressed or comprehended in the title thereof; (3) the Act
violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission by
aliens of their retail business thru hereditary succession, and those
requiring 100% Filipino capitalization for a corporation or entity to entitle
it to engage in the retail business, violate the spirit of Sections 1 and 5,
Article XIII and Section 8 of Article XIV of the Constitution.
 In answer, the Solicitor-General and the Fiscal of the City of Manila
contend that: (1) the Act was passed in the valid exercise of the police
power of the State, which exercise is authorized in the Constitution in
the interest of national economic survival; (2) the Act has only one
subject embraced in the title; (3) no treaty or international obligations
are infringed; (4) as regards hereditary succession, only the form is
affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of
the police power, but petitioner claims that its exercise in this instance
is attended by a violation of the constitutional requirements of due
process and equal protection of the laws. But before proceeding to the
consideration and resolution of the ultimate issue involved, it would be
well to bear in mind certain basic and fundamental, albeit preliminary,
considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal
protection of the laws. What is the scope of police power and how are
the due process and equal protection clauses related to it? What is the
province and power of the legislature, and what is the function and duty
of the courts? These consideration must be clearly and correctly
understood that their application to the facts of the case may be brought
forth with clarity and the issue accordingly resolved.
It has been said that police power is so far-reaching in scope, that it
has become almost impossible to limit its sweep. As it derives its
existence from the very existence of the State itself, it does not need to
be expressed or defined in its scope; it is said to be co- extensive with
self-protection and survival, and as such it is the most positive and
active of all governmental processes, the most essential, insistent and
illimitable. Especially is it so under a modern democratic framework
where the demands of society and of nations have multiplied to almost
unimaginable proportions; the field and scope of police power has
become almost boundless, just as the fields of public interest and public
welfare have become almost all- embracing and have transcended
human foresight. Otherwise stated, as we cannot foresee the needs and
demands of public interest and welfare in this constantly changing and
progressive world, so we cannot delimit beforehand the extent or scope
of police power by which and through which the State seeks to attain or
achieve public interest or welfare. So it is that Constitutions do not
define the scope or extent of the police power of the State; what they do
is to set forth the limitations thereof. The most important of these are
the due process clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found
in the following provisions of our Constitution:
"SECTION 1.(1) No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied
the equal protection of the laws." (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual
liberty and freedom in democracies, are not limited to citizens alone but
are admittedly universal in their application, without regard to any
differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
ed. 220, 226.)
c. The equal protection clause. —
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation, which
is limited either in the object to which it is directed or by territory within
which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exists for making a distinction between those who fall within
such class and those who do not. (2 Cooley, Constitutional Limitations,
824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of
legislation enacted in pursuance of the police power, Is there public
interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or oppressive? Is there
sufficient foundation or reason in connection with the matter involved; or
has there not been a capricious use of the legislative power? Can the
aims conceived be achieved by the means used, or is it not merely an
unjustified interference with private interest? These are the questions
that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of
due process and equal protection of the laws is more apparent than real.
Properly related, the power and the guarantees are supposed to coexist.
The balancing is the essence or, shall it be said, the indispensable
means for the attainment of legitimate aspirations of any democratic
society. There can be no absolute power, whoever exercise it, for that
would be tyranny. Yet there can neither be absolute liberty, for that would
mean license and anarchy. So the State can deprive persons of life,
liberty and property, provided there is due process of law; and persons
may be classified into classes and groups, provided everyone is given
the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public
interest and welfare, and a reasonable relation must exist between
purposes and means. And if distinction and classification has been
made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place
and role of the courts? It must not be overlooked, in the first place, that
the legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by
force of circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the exercise of
the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have nevertheless
evinced a reluctance to interfere with the exercise of the legislative
prerogative. They have done so early where there has been a clear,
patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate
policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to
delve directly into the issue involved. If the disputed legislation were
merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes
further and prohibits a group of residents, the aliens, from engaging
therein. The problem becomes more complex because its subject is a
common, trade or occupation, as old as society itself, which from time
immemorial has always been open to residents, irrespective of race,
color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they
consume and consume all that they produce, the dealer, of course, is
unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an
infinite number of things they do not produce, the dealer comes into
existence. As villages develop into big communities and specialization in
production begins, the dealer's importance is enhanced. Under modern
conditions and standards of living, in which man's needs have multiplied
and diversified to unlimited extents and proportions, the retailer comes
as essential as the producer, because thru him the infinite variety of
articles, goods and commodities needed for daily life are placed within
the easy reach of consumers. Retail dealers perform the functions of
capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the
nation.
There cannot be any question about the importance of the retailer
in the life of the community. He ministers to the resident's daily needs,
food in all its increasing forms, and the various little gadgets and things
needed for home and daily life. He provides his customers around his
store with the rice or corn, the fish, the salt, the vinegar, the spices
needed for the daily cooking. He has cloths to sell, even the needle and
the thread to sew them or darn the clothes that wear out. The retailer,
therefore, from the lowly peddler, the owner of a small sari-sari store, to
the operator of a department store or a supermarket is so much a part of
day-to-day existence.
b. The alien retailer's traits. —
The alien retailer must have started plying his trade in this country
in the bigger centers of population (Time there was when he was
unknown in provincial towns and villages). Slowly but gradually he
invaded towns and villages; now he predominates in the cities and big
centers of population. He even pioneers in far away nooks where the
beginnings of community life appear, ministering to the daily needs of
the residents and purchasing their agricultural produce for sale in the
towns. It is an undeniable fact that in many communities the alien has
replaced the native retailer. He has shown in this trade, industry without
limit, and the patience and forbearance of a slave. Derogatory epithets
are hurled at him, but he laughs these off without murmur; insults of ill-
bred and insolent neighbors and customers are made in his face, but he
heeds them not, and he forgets and forgives. The community takes no
note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears
to be true to fact, about the controlling and dominant position that the
alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly
through him. In big cities and centers of population he has acquired not
only predominance, but apparent control over distribution of almost all
kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it
not for some national corporations like the Naric, the Namarco, the
Facomas and the Accfa, his control over principal foods and products
would easily become full and complete.
Petitioner denies that there is alien predominance and control in
the retail trade. In one breath it is said that the fear is unfounded and the
threat is imagined; in another, it is charged that the law is merely the
result of racialism and pure and unabashed nationalism. Alienage, it is
said, is not an element of control; also so many unmanageable factors in
the retail business make control virtually impossible. The first argument
which brings up an issue of fact merits serious consideration. The others
are matters of opinion within the exclusive competence of the
legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put
down the figures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and control of
the retail trade already filled the minds of our leaders with fears and
misgivings, and the year of the enactment of the nationalization of the
retail trade act (1954), official statistics unmistakably point out to the
ever-increasing dominance and control by the alien of the retail trade, as
witness the following tables:
Assets Gross Sales
Year and Retailer's No.-Estab- Per cent Per cent
Nationality ishments Pesos Distri- Pesos Distri-
bution bution
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 5174
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
Others 1,646 40,187,090 11.20 13,630,239 4.05
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
Others 354 8,761,260 .49 4,927,168 1.01
1948:
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
Others 422 10,514,675 3.32 9,995,402 1.29
1949:
 Filipino 113,659 213,451,602 60.89 462,532,901 53.47
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
Others 486 12,056,365 3.39 10,078,364 1.17
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
Others 347 8,614,025 2.31 7,645,327 .87
AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Item Gross Sales
Year and Retailer's Assets (Pesos)
Nationality (Pesos)
1941:
Filipino 1,878 1,633
Chinese 7,707 9,691
Others 24,415 8,281
1947:
Filipino 1,878 2,516
Chinese 7,707 14,934
Others 24,749 13,919
1948: (Census)
Filipino 1,878 4,111
Chinese 7,707 24,398
Others 24,916 23,686
1949:
Filipino 1,878 4,069
Chinese 7,707 24,152
Others 24,807 20,737
1951:
Filipino 1,877 3,905
Chinese 7,707 33,207
Others 24,824 22,033
(Estimates Assets and Gross Sales of Retail Establishments, By
year and Nationality of Owners, Benchmark: 1948 Census, issued by
the Bureau of Census and Statistics, Department of Commerce and
Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while
the figures on Filipino establishments already include mere market
vendors, whose capital is necessarily small.
The above figures reveal that in percentage distribution of assets
and of gross sales, alien participation has steadily increased during the
years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through
their assets and gross sales which average between six and seven times
those of the very many Filipino retailers Numbers in retailers, here, do
not imply superiority; the alien invests more capital, buys and sells six to
seven times more, and gains much more. The same of official report,
pointing out to the known predominance of foreign elements in the retail
trade, remarks that the Filipino retailers were largely engaged in minor
retailer enterprises. As observed by respondents, the native investment
is thinly spread, and the Filipino retailer is practically helpless in matters
of capital, credit, price and supply.
 d. Alien control and threat, subject of apprehension in
Constitutional Convention. —
It is this domination and control, which we believe has been
sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization law. If they did not exist as a
fact the sweeping remedy of nationalization would never have been
adopted. The framers of our Constitution also believed in the existence
of this alien dominance and control when they approved a resolution
categorically declaring among other things, that "it is the sense of the
Convention that the public interest requires the nationalization of the
retail trade; . . ." (II Aruego, The Framing of the Philippine Constitution,
662-663, quoted on page 67 of Petitioner.) That was twenty-two years
ago; and the events since then have not been either pleasant or
comforting. Dean Since of the University of the Philippines College of
Law, commenting on the patrimony clause of the Preamble opines that
the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had
already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and
analyzing the concern of the members of the constitutional convention
for the economic life of the citizens, in connection with the nationalistic
provisions of the Constitution, he says:
"But there has been a general feeling that alien dominance over
the economic life of the country is not desirable and that if such a
situation should remain, political independence alone is no guarantee
to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national
economy. Moreover, it is but of recent formation and hence, largely
inexperienced, timid and hesitant. Under such conditions, the
government as the instrumentality of the national will, has to step in
and assume the initiative, if not the leadership, in the struggle for the
economic freedom of the nation in somewhat the same way that it
did in the crusade for political freedom. Thus . . . It (the Constitution)
envisages an organized movement for the protection of the nation not
only against the possibilities of armed invasion but also against its
economic subjugation by alien interests in the economic field." (Phil.
Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in
other quarters. Filipino business men, manufacturers and producers
believe so; they fear the business coming from alien control, and they
express sentiments of economic independence. Witness thereto is
Resolution No. 1, approved on July 18, 1953, of the Fifth National
Convention of Filipino Businessmen, and a similar resolution, approved
on March 20, 1954, of the Second National Convention of Manufacturers
and Producers. The man in the street also believes, and fears, alien
predominance and control; so our newspapers, which have editorially
pointed out not only to control but to alien stranglehold. We, therefore,
find alien domination and control to be a fact, a reality proved by official
statistics, and felt by all the sections and groups that compose the
Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a prevailing
feeling that such predominance may truly endanger the national interest.
With ample capital, unity of purpose and action and thorough
organization, alien retailers and merchants can act in such complete
unison and concert on such vital matters as the fixing of prices, the
determination of the amount of goods or articles to be made available in
the market, and even the choice of the goods or articles they would or
would not patronize or distribute, that fears of dislocation of the national
economy and of the complete subservience of national retailers and of
the consuming public are not entirely unfounded. Nationals, producers
and consumers alike, can be placed completely at their mercy. This is
easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not
offer them sufficient profits, or because a new competing article offers
bigger profits for its introduction. All that aliens would do is to agree to
refuse to sell the first article, eliminating it from their stocks, offering
the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of
circulation. Freedom of trade is thus curtailed and free enterprise
correspondingly suppressed.
We can even go farther than theoretical illustrations to show the
pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact within
judicial notice, which courts of justice may not properly overlook or
ignore in the interests of truth and justice, that there exists a general
feeling on the part of the public that alien participation in the retail trade
has been attended by a pernicious and intolerable practices, the mention
of a few of which would suffice for our purposes; that at some time or
other they have cornered the market of essential commodities, like corn
and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the
inconvenience and prejudice of the consuming public, so much so that
the Government has had to establish the National Rice and Corn
Corporation to save the public from their continuous hoarding practices
and tendencies; that they have violated price control laws, especially on
foods and essential commodities, such that the legislature had to enact
a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and
automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the
operation of the law of supply and demand; that they have connived to
boycott honest merchants and traders who would not cater or yield to
their demands, in unlawful restraint of freedom of trade and enterprise.
They are believed by the public to have evaded tax laws, smuggled goods
and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful
authority. It is also believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the prevalence of graft
and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by
their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above
practices.
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of the alien
retailer, especially in the big centers of population, therefore, becomes a
potential source of danger on occasions of war or other calamity. We do
not have here in this country isolated groups of harmless aliens retailing
goods among nationals; what we have are well organized and powerful
groups that dominate the distribution of goods and commodities in the
communities and big centers of population. They owe no allegiance or
loyalty to the State, and the State cannot rely upon them in times of
crisis or emergency. While the national holds his life, his person and his
property subject to the needs of his country, the alien may even become
the potential enemy of the State.
f. Law enacted in interest of national economic survival and
security. —
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial hostility,
prejudice or discrimination, but the expression of the legitimate desire
and determination of the people, thru their authorized representatives, to
free the nation from the economic situation that has unfortunately been
saddled upon it rightly or wrongly, to its disadvantage. The law is clearly
in the interest of the public, any of the national security itself, and
indisputably falls within the scope of police power, thru which and by
which the State insures its existence and security and the supreme
welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. —
The next question that now poses solution is, Does the law deny the
equal protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien and
the national as a trader. The alien resident owes allegiance to the
country of his birth or his adopted country; his stay here is for personal
convenience; he is attracted by the lure of gain and profit. His aim or
purpose of stay, we admit, is neither illegitimate nor immoral, but he is
naturally lacking in that spirit of loyalty and enthusiasm for this country
where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would
prevent him from taking advantage of their weakness and exploiting
them. The faster he makes his pile, the earlier can the alien go back to
his beloved country and his beloved kin and country men. The experience
of the country is that the alien retailer has shown such utter disregard
for his customers and the people on whom he makes his profit, that it
has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he
never really makes a genuine contribution to national income and
wealth. He undoubtedly contributes to general distribution, but the gains
and profits he makes are not invested in industries that would help the
country's economy and increase national wealth. The alien's interest in
this country being merely transient and temporary, it would indeed be ill-
advised to continue entrusting the very important function of retail
distribution to his hands.

The practices resorted to by aliens in the control of distribution, as

already pointed out above, their secret manipulations of stocks of
commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of
which they are mere guests, which practices, manipulations and
disregard do not attend the exercise of the trade by the nationals, show
the existence of real and actual, positive and fundamental differences
between an alien and a national which fully justify the legislative
classification adopted in the retail trade measure. These differences are
certainly a valid reason for the State to prefer the national over the alien
in the retail trade. We would be doing violence to fact and reality were
we to hold that no reason or ground for a legitimate distinction can be
found between one and the other.
b. Difference in alien aims and purposes sufficient basis for
distinction. —
The above objectionable characteristics of the exercise of the retail
trade by the aliens, which are actual and real, furnish sufficient grounds
for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification.
To this we answer, that this is the prerogative of the law-making power.
Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it
cannot be said that the classification is patently unreasonable and
unfounded, it is in duty bound to declare that the legislature acted within
its legitimate prerogative and it cannot declare that the act transcends
the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions
and classifications among persons is not curtailed or denied by the equal
protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis. In
addition to the authorities we have earlier cited, we can also refer to the
case of Lindsley vs. Natural Carbonic Gas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:
". . . '1. The equal protection clause of the Fourteenth
Amendment does not take from the state the power to classify in the
adoption of police laws, but admits of the exercise of the wide scope
of discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical nicety,
or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the existence of
that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis,
but is essentially arbitrary.'"
c. Authorities recognizing citizenship as basis for classification . —
The question as to whether or not citizenship is a legal and valid
ground for classification has already been affirmatively decided in this
jurisdiction as well as in various courts in the United States. In the case
of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act
No. 2761 of the Philippine Legislature was in issue, because of a
condition therein limiting the ownership of vessels engaged in coastwise
trade to corporations formed by citizens of the Philippine Islands or the
United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal protection clause of the
Philippine Bill of Rights. The Legislature in enacting the law had as
ultimate purpose the encouragement of Philippine shipbuilding and the
safety for these Islands from foreign interlopers. We held that this was a
valid exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the
Philippines does not violate the equal protection of the law and due
process of law clauses of the Philippine Bill of Rights. In rendering said
decision we quoted with approval the concurring opinion of Justice
Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"'Licensing acts, in fact, in legislation, are universally
restraining acts; as, for example, acts licensing gaming houses,
retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system,
the object of which is to encourage American shipping, and place
them on an equal footing with the shipping of other nations. Almost
every commercial nation reserves to its own subjects a monopoly of
its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American
character, that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously
intruding themselves into the American commercial marine, as well
as frauds upon the revenue in the trade coastwise, that this whole
system is projected.'"
The rule in general is as follows:
"Aliens are under no special constitutional protection which
forbids a classification otherwise justified simply because the
limitation of the class falls along the lines of nationality. That would
be requiring a higher degree of protection for aliens as a class than
for similar classes of American citizens. Broadly speaking, the
difference in status between citizens and aliens constitutes a basis
for reasonable classification in the exercise of police power." (2 Am.
Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a
statute on the licensing of hawkers and peddlers, which provided that no
one can obtain a license unless he is, or has declared his intention, to
become a citizen of the United States, was held valid, for the following
reason: It may seem wise to the legislature to limit the business of those
who are supposed to have regard for the welfare, good order and
happiness of the community, and the court cannot question this
judgment and conclusion. In Bloomfield vs. State, 99 N.E. 309 (Ohio,
1912), a statute which prevented certain persons, among them aliens,
from engaging in the traffic of liquors, was found not to be the result of
race hatred, or in hospitality, or a deliberate purpose to discriminate, but
was based on the belief that an alien cannot be sufficiently acquainted
with 'our institutions and our life as to enable him to appreciate the
relation of this particular business to our entire social fabric", and was
not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U.S. 392,
71 L. ed. 1115 (1926), the U. S. Supreme Court had under consideration
an ordinance of the city of Cincinnati prohibiting the issuance of
licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that
alien race and allegiance may not bear in some instances such a relation
to a legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly
wrong; and that latitude must be allowed for the legislative
appraisement of local conditions and for the legislative choice of
methods for controlling an apprehended evil. The case of State vs.
Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In
Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of
pawnbroking was considered as having tendencies injuring public
interest, and limiting it to citizens is within the scope of police power. A
similar statute denying aliens the right to engage in auctioneering was
also sustained in Wright vs. May, L. R. A., 1915 P. 151 (Minnesota, 1914).
So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said
that aliens are judicially known to have different interests, knowledge,
attitude, psychology and loyalty, hence the prohibition of issuance of
licenses to them for the business of pawnbroker, pool, billiard, card
room, dance hall, is not an infringement of constitutional rights. In
Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan,
1902), a law prohibiting the licensing of aliens as barbers was held void,
but the reason for the decision was the court's finding that the exercise
of the business by the aliens does not in any way affect the morals, the
health, or even the convenience of the community. In Takahashi vs. Fish
and Game Commission, 92 L. ed. 1479 (1947), a California statute
banning the issuance of commercial fishing licenses to persons
ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest
in the mere claim of ownership of the waters and the fish in them, so
there was no adequate justification for the discrimination. It further
added that the law was the outgrowth of antagonism toward persons of
Japanese ancestry. However, two Justices dissented on the theory that
fishing rights have been treated traditionally as natural resources. In
Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a
state law which imposed a tax on every employer of foreign-born
unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification
and the tax was an arbitrary deduction from the daily wage of an
employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State
courts in the United States hold that the distinction between aliens and
citizens is not a valid ground for classification. But in these decisions
the laws declared invalid were found to be either arbitrary, unreasonable
or capricious, or were the result or product of racial antagonism and
hostility, and there was no question of public interest involved or
pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United
States Supreme Court declared invalid a Philippine law making unlawful
the keeping of books of account in any language other than English,
Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would
be no other system of distribution, and (2) that the Chinese would fall
prey to all kinds of fraud, because they would be deprived of their right
to be advised of their business and to direct its conduct. The real reason
for the decision, therefore, is the court's belief that no public benefit
would be derived from the operation of the law and on the other hand it
would deprive Chinese of something indispensable for carrying on their
business. In Yick Wo vs. Hopkins, 30 L. ed. 220 (1885) an ordinance
conferring power on officials to withhold consent in the operation of
laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and
implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
prohibiting aliens to engage as hawkers and peddlers was declared void,
because the discrimination bore no reasonable and just relation to the
act in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so.
As we already have said, aliens do not naturally possess the sympathetic
consideration and regard for customers with whom they come in daily
contact, nor the patriotic desire to help bolster the nation's economy,
except in so far as it enhances their profit, nor the loyalty and allegiance
which the national owes to the land. These limitations on the
qualifications of aliens have been shown on many occasions and
instances, especially in times of crisis and emergency. We can do no
better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342,
to drive home the reality and significance of the distinction between the
alien and the national, thus:
". . . It may be judicially known, however, that aliens coming into
this country are without the intimate knowledge of our laws,
customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology from
our fellow countrymen. Furthermore, it is natural and reasonable to
suppose that the foreign born, whose allegiance is first to their own
country, and whose ideals of governmental environment and control
have been engendered and formed under entirely different regimes
and political systems, have not the same inspiration for the public
weal, nor are they as well disposed toward the United States, as
those who by citizenship, are a part of the government itself. Further
enlargement, is unnecessary. I have said enough so that obviously it
cannot be affirmed with absolute confidence that the Legislature
was without plausible reason for making the classification, and
therefore appropriate discrimination against aliens as it relates to
the subject of legislation. . . ."
VII. The Due Process of Law Limitation
a. Reasonability, the test of the limitation; determination by legislature
decisive. —
We now come to due process as a limitation on the exercise of the
police power. It has been stated by the highest authority in the United
States that:
". . . And the guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . ."
 xxx xxx xxx
"So far as the requirement of due process is concerned and in
the absence of other constitutional restriction a state is free to adopt
whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such
policy, or, when it is declared by the legislature, to override it. If the
laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . ." (Nebbia vs. New
York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
". . . Too much significance cannot be given to the word
'reasonable' in considering the scope of the police power in a
constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to
inquire whether the restrictions it imposes on rights secured to
individuals by the Bill of Rights are unreasonable, and not whether it
imposes any restrictions on such rights. . . ."
xxx xxx xxx
". . . A statute to be within this power must also be reasonable
in its operation upon the persons whom it affects, must not be for the
annoyance of a particular class, and must not be unduly oppressive."
(11 Am. Jur. Sec. 302, pp. 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388, it was also
held:
". . . To justify the state in thus interposing its authority in
behalf of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular class,
require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . ."
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395,
fixes this test of constitutionality:
"In determining whether a given act of the Legislature, passed
in the exercise of the police power to regulate the operation of a
business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public."
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary
occupation, one of those privileges long ago recognized as essential to
the orderly pursuit of happiness by free men; that it is a gainful and
honest occupation and therefore beyond the power of the legislature to
prohibit and penalize. This argument overlooks fact and reality and rests
on an incorrect assumption and premise, i.e., that in this country where
the occupation is engaged in by petitioner, it has been so engaged by
him, by the alien, in an honest creditable and unimpeachable manner,
without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has
found, as we have also found and indicated, that the privilege has been
so grossly abused by the alien, thru the illegitimate use of pernicious
designs and practices, that he now enjoys a monopolistic control of the
occupation and threatens a deadly stranglehold on the nation's economy
endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner,
which overlooks and ignores the facts and circumstances, but this, Is the
exclusion in the future of aliens from the retail trade unreasonable,
arbitrary and capricious, taking into account the illegitimate and
pernicious form and manner in which the aliens have heretofore engaged
therein? As thus correctly stated the answer is clear. The law in question
is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects private
rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of
reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect
(Id.) Judged by this test, disputed legislation, which is not merely
reasonable but actually necessary, must be considered not to have
infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory
note that accompanied the bill, which later was enacted into law:
"This bill proposes to regulate the retail business. Its purpose is
to prevent persons who are not citizens of the Philippines from
having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our
free institutions, and who have no permanent stake in our people's
welfare, we are not really the masters of our own destiny. All aspects
of our life, even our national security, will be at the mercy of other
people.
"In seeking to accomplish the foregoing purpose, we do not
propose to deprive persons who are not citizens of the Philippines of
their means of livelihood. While this bill seeks to take away from the
hands of persons who are not citizens of the Philippines a power that
can be wielded to paralyze all aspects of our national life and
endanger our national security it respects existing rights.

"The approval of this bill is necessary for our national survival."

If political independence is a legitimate aspiration of a people, then
economic independence is none the less legitimate. Freedom and liberty
are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or
country. The removal and eradication of the shackles of foreign
economic control and domination, is one of the noblest motives that a
national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional
limitation of due process. The attainment of a legitimate aspiration of a
people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the
sphere of legislative action. —
The framers of the Constitution could not have intended to impose
the constitutional restrictions of due process on the attainment of such
a noble motive as freedom from economic control and domination, thru
the exercise of the police power. The fathers of the Constitution must
have given to the legislature full authority and power to enact legislation
that would promote the supreme happiness of the people, their freedom
and liberty. On the precise issue now before us, they expressly made
their voice clear; they adopted a resolution expressing their belief that
the legislation in question is within the scope of the legislative power.
Thus they declared in their Resolution:
"'That it is the sense of the Convention that the public interest
requires the nationalization of retail trade; but it abstains from
approving the amendment introduced by the Delegate for Manila, Mr.
Araneta, and others on this matter because it is convinced that the
National Assembly is authorized to promulgate a law which limits to
Filipino and American citizens the privilege to engage in the retail
trade.'" (II Aruego, The Framing of the Philippine Constitution, 662-
663, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)
It would do well to refer to the nationalistic tendency manifested in
various provisions of the Constitution. Thus in the preamble, a principal
objective is the conservation of the patrimony of the nation and as
corollary thereto the provision limiting to citizens of the Philippines the
exploitation, development and utilization of its natural resources. And in
Section 8 of Article XIV, it is provided that "no franchise, certificate, or
any other form of authorization for the operation of a public utility shall
be granted except to citizens of the Philippines." The nationalization of
the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said
that a law imbued with the same purpose and spirit underlying many of
the provisions of the Constitution is unreasonable, invalid and
unconstitutional?
The seriousness of the Legislature's concern for the plight of the
nationals as manifested in the approval of the radical measure is,
therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the
nationals with complacency and refuse or neglect to adopt a remedy
commensurate with the demands of public interest and national survival.
As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate
measures, the danger and threat that alien domination of retail trade
poses to national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals
how tolerant, how reasonable the Legislature has been. The law is made
prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their
lives; and similar recognition of the right to continue is accorded
associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this
case, attention was called to the fact that the privilege should not have
been denied to children and heirs of aliens now engaged in the retail
trade. Such provision would defeat the law itself, its aims and purposes.
Besides, the exercise of legislative discretion is not subject to judicial
review It is well settled that the Court will not inquire into the motives of
the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment
or of any of its provisions, and every presumption is in favor of its
validity, and though the Court may hold views inconsistent with the
wisdom of the law, it may not annul the legislation if not palpably in
excess of the legislative power. Furthermore, the test of the validity of a
law attacked as a violation of due process, is not its reasonableness, but
its unreasonableness, and we find the provisions are not unreasonable.
These principles also answer various other arguments raised against the
law, some of which are: that the law does not promote general welfare;
that thousands of aliens would be thrown out of employment; that prices
will increase because of the elimination of competition; that there is no
need for the legislation; that adequate replacement is problematical;
that there may be general breakdown; that there would be repercussions
from foreigners; etc. Many of these arguments are directed against the
supposed wisdom of the law which lies solely within the legislative
prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law
is the claim that the title thereof is misleading or deceptive, as it
conceals the real purpose of the bill, which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI,
which reads:
"No bill which may be enacted into law shall embrace more then
one subject which shall be expressed in the title of the bill".
What the above provision prohibits is duplicity, that is, if its title
completely fails to apprise the legislators or the public of the nature,
scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the
title and the provisions of the bill fails to show the presence of duplicity.
It is true that the term "regulate" does not and may not readily and at
first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization.
Both of these have always been included within the term regulation.
"Under the title of an act to 'regulate', the sale of intoxicating
liquors, the Legislature may prohibit the sale of intoxicating liquors."
(Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
"Within the meaning of the Constitution requiring that the
subject of every act of the Legislature shall be stated in the title, the
title 'To regulate the sale of intoxicating liquors, etc." sufficiently
expresses the subject of an act prohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such
matters being properly included within the subject of regulating the
sale." (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
"The word 'regulate' is of broad import, and necessarily implies
some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate' does
not ordinarily convey meaning of prohibit, there is no absolute reason
why it should not have such meaning when used in delegating police
power in connection with a thing the best or only efficacious
 regulation of which involves suppression." (State vs. Morton, 162 So.
718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill;
it has also been said that the title need not be an index to the entire
contents of the law (I Sutherland, Statutory Construction, Sec. 4803, p.
345.) The above rule was followed when the title of the Act in question
adopted the more general term "regulate" instead of "nationalize" or
"prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade, which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from
"regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have
made the Act invalid. The use of the term "regulate", therefore, is in
accord with the principle governing the drafting of statutes, under which
a simple or general term should be adopted in the title, which would
include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill
should be embraced in its title is to apprise the legislators of the
purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have not received the notice, action
and study of the legislators or of the public. In the case at bar it cannot
be claimed that the legislators have not been apprised of the nature of
the law, especially the nationalization and prohibition provisions. The
legislators took active interest in the discussion of the law, and a great
many of the persons affected by the prohibition in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the
reasons for declaring the law invalid ever existed. The objection must
therefore, be overruled.
IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the

supposed violation thereby of the Charter of the United Nations and of
the Declaration of Human Rights adopted by the United Nations General
Assembly. We find no merit in the above contention. The United Nations
Charter imposes no strict or legal obligations regarding the rights and
freedom of their subjects (Hans Kelsen, The Law of the United Nations,
1951 ed. pp. 29-32), and the Declaration of Human Rights contains
nothing more than a mere recommendation, or a common standard of
achievement for all peoples and all nations (Id. p. 39.) That such is the
import of the United Nations Charter aid of the Declaration of Human
Rights can be inferred from the fact that members of the United Nations
Organization, such as Norway and Denmark, prohibit foreigners from
engaging in retail trade, and in most nations of the world laws against
foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the
Republic of China of April 18, 1947 is also claimed to be violated by the
law in question. All that the treaty guarantees is equality of treatment to
the Chinese nationals "upon the same terms as the nationals of any
other country." But the nationals of China are not discriminated against
because nationals of all other countries, except those of the United
States, who are granted special rights by the Constitution, are all
prohibited from engaging in the retail trade. But even supposing that the
 law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law (U. S. vs. Thompson,
258, Fed. 257, 260), and the same may never curtail or restrict the scope
of the police power of the State (Palston vs. Pennsylvania, 58 L. ed. 539.).
X. Conclusion
Resuming what we have set forth above we hold that the disputed
law was enacted to remedy a real actual threat and danger to national
economy posed by alien dominance and control of the retail business
and free citizens and country from such dominance and control; that the
enactment clearly falls within the scope of the police power of the State,
thru which and by which it protects its own personality and insures its
security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the
distinction between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is
prospective in operation and recognizes the privilege of aliens already
engaged in the occupation and reasonably protects their privilege; that
the wisdom and efficacy of the law to carry out its objectives appear to
us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter
falls within the prerogative of the Legislature, with whose power and
discretion the Judicial department of the Government may not interfere;
that the provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be void
for supposed conflict with treaty obligations because no treaty has
actually been entered into on the subject and the police power may not
be curtailed or surrendered by any treaty or any other conventional
agreement.
Some members of the Court are of the opinion that the radical
effects of the law could have been made less harsh in its impact on the
aliens. Thus it is stated that more time should have been given in the law
for the liquidation of existing businesses when the time comes for them
to close. Our legal duty, however, is merely to determine if the law falls
within the scope of legislative authority and does not transcend the
limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be
addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes A., Bautista Angelo, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ., concur.
||| (Ichong v. Hernandez, G.R. No. L-7995, [May 31, 1957], 101 PHIL 1155-1195)
 FIRST DIVISION

[G.R. No. 98050. March 17, 1994.]

PHILIPPINE PHOSPHATE FERTILIZER

CORPORATION, petitioner, vs. HON. RUBEN D. TORRES,
Secretary of Labor and Employment, HON. RODOLFO S. MILADO,
Department of Labor and Employment Mediator-Arbiter for
Region VIII, Tacloban City, and PHILPHOS MOVEMENT FOR
PROGRESS, INC. (PMPI), respondents.

DECISION

BELLOSILLO, J :p

PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS) assails

the decision of the Secretary of Labor of 7 August 1990 affirming the order
of the Mediator-Arbiter of 28 March 1990 which directed the immediate
conduct of a certification election among thesupervisory, professional or
technical, and confidential employees of petitioner corporation. prLL

On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for brevity),
filed with the Department of Labor and Employment a petition for
certification election among the supervisory employees of petitioner,
alleging that as a supervisory union duly registered with the Department of
Labor and Employment it was seeking to represent the supervisory
employees of Philippine Phosphate Fertilizer Corporation.LibLex

The petition for certification election filed by PMPI was not opposed by
PHILPHOS. In fact, on 11 August 1989, PHILPHOS submitted a position
paper with the Mediator-Arbiter stating that its management welcomed the
creation of a supervisory employees' union provided the necessary
requisites of law were properly observed, but exempting from the union
its superintendents who were managerial and not supervisory
employees as they managed a division, subdivision or section, and were
vested with powers or prerogatives to lay down and execute management
policies. PHILPHOS also asserted that its professional or technical
employees were not within the definition of supervisory employees under
the Labor Code as they were immediately under the direction and
supervision of its superintendents and supervisors. Moreover, the
professional and technical employees did not have a staff of workers under
them. Consequently, petitioner prayed for the exclusion of
its superintendents and professional/technical employees from the PMPI
supervisory union.
On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued an order
directing the holding of a certification election among the supervisory
employees of petitioner, excluding therefrom the superintendents and
the professional and technical employees. He also directed the parties to
attend the pre-election conference on 19 April 1990 for the determination of
the mechanics of the election process and the qualifications and eligibility
of those allowed to vote.
On 15 November 1989, PMPI filed an amended petition with the Mediator-
Arbiter wherein it sought to represent not only the supervisory employees of
petitioner but also its professional/technical and confidential employees.
The amended petition was filed in view of the amendment to the PMPI
Construction which included in its membership
the professional/technical and confidential employees.
On 14 December 1989, the parties therein agreed to submit their respective
position papers and to consider the amended petition submitted for
decision on the basis thereof and related documents.
On 28 March 1990, Mediator-Arbiter Milado issued an order granting the
petition and directing the holding of a certification election among the
"supervisory, professional (engineers, analysts, mechanics, accountants,
nurses, midwives, etc.), technical, and confidential employees" 1 to
comprise the proposed bargaining unit.
On 16 April 1990, PHILPHOS appealed the order of 28 March 1990 to the
Secretary of Labor and Employment who on 7 August 1990 rendered a
decision through Undersecretary Bienvenido Laguesma dismissing the
appeal. PHILPHOS moved for reconsideration but the same was denied;
hence, the instant petition alleging grave abuse of discretion on the part of
public respondents in rendering the assailed rulings. Cdpr

On 8 July 1991, this Court issued a temporary restraining order enjoining

respondents from holding the certification election among
petitioner's supervisory, professional/technical, and confidential
employees scheduled on 12 July 1991.
There are two (2) issues raised by petitioner: (1) whether it was denied due
process in the proceedings before respondent Mediator-Arbiter; and, (2)
whether its professional/technical and confidential employees may validly
join respondent PMPI union which is composed of supervisors.
PHILPHOS claims that it was denied due process when respondent
Mediator-Arbiter granted the amended petition of respondent PMPI without
according PHILPHOS a new opportunity to be heard.
We do not see it the way PHILPHOS does here. The essence of due process
is simply an opportunity to be heard or, as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek
a reconsideration of the action or ruling complained of. 2 Where, as in the
instant case, petitioner PHILPHOS agreed to file its position paper with the
Mediator-Arbiter and to consider the case submitted for decision on the
basis of the position papers filed by the parties, there was sufficient
compliance with the requirement of due process, as petitioner was afforded
reasonable opportunity to present its side. 3 Moreover, petitioner could
have, if it so desired, insisted on a hearing to confront and examine the
witnesses of the other party. But it did not; 4 instead, it opted to submit its
position paper with the Mediator-Arbiter. Besides, petitioner had all the
opportunity to ventilate its arguments in its appeal to the Secretary of
Labor.
As regards the second issue, we are with petitioner that being
a supervisory union, respondent PMPI cannot represent
theprofessional/technical and confidential employees of petitioner whose
positions we find to be more of the rank and file than supervisory.
With the enactment in March 1989 of R.A. 6715, employees were thereunder
reclassified into three (3) groups, namely: (a) managerial employees, (b)
supervisory employees, and (c) rank and file employees. The category of
supervisory employees is once again recognized in the present law.
Article 212, par. (m), of the Labor Code, as amended, provides that
"(s)upervisory employees are those who, in the interest of the employer,
effectively recommend such managerial actions if the exercise of such
authority is not merely routinary or clerical in nature but requires the use
of independent judgment." The definition of managerial employees is
limited to those having authority to hire and fire, while those who only
recommend effectively the hiring or firing or transfer of personnel are
considered closer to rank and file employees. The exclusion therefore of
mid-level executives from the category of managers has brought about a
third classification, the supervisory employees. The peculiar role of
supervisors is such that while they are not managers, when they
recommend action implementing management policy or ask for the
discipline or dismissal of subordinates, they identify with the interests of
the employer and may act contrary to the interests of the rank and file. 5
In its position paper submitted to the Mediator-Arbiter, petitioner described
the positions and functions of its professional/technical employees,
(engineers, analysts, mechanics, accountants, nurses, and midwives). The
guidelines, which were not refuted by respondent PMPI, state:
. . . Professional and Technical positions are those whose primary
duty consists of the performance of work directly related to
management programs; who customarily, regularly and routinarily
exercise judgment in the application of concepts, methods, systems
and procedures in their respective fields of specialization; who
regularly and directly assist a managerial and/or supervisory
employee, execute under general supervision, work along specialized
or technical lines requiring special training, experience or
knowledge, or execute under general supervision special
assignments and tasks . . . They are immediately under the direction
and supervision of supervisors or superintendents. They have no men
under them but are regularly called upon by their supervisors or
superintendents on some technical matters. 6

Moreover, Herculano A. Duhaylungsod, Personnel Officer of petitioner,

attested that there was no community of interests between
thesupervisors of petitioner and the professional/technical employees; that
as of 25 July 1990, personnel records showed that there were
125 supervisors and 271 professional/technical employees; that of the
271 professional/technical employees, 150 were directly under and being
supervised by supervisors, while the rest were staff members of
superintendents. 7
The certification of Personnel Officer Duhaylungsod that
its professional/technical employees occupy positions that are non-
supervisory is evidence that said employees belong to the rank and
file. 8 Quite obviously, these professional/technical employeescannot
effectively recommend managerial actions with the use of independent
judgment because they are under the supervision of superintendents and
supervisors. Because it is unrefuted that these professional/technical
employees are performing non-supervisory functions, hence considered
admitted, they should be classified, at least for purposes of this case,
as rank and file employees. Consequently, these professional/technical
 employees cannot be allowed to join a union composed of supervisors.
Conversely, supervisory employees cannot join a labor organization of
employees under their supervision but may validly form a separate
organization of their own. 9 This is provided in Art. 245 of the Labor Code,
as amended by R.A. No. 6715, to wit:
. . . Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for
membership in a labor organization of the rank and file employees but
may join, assist or form separate labor organizations of their own.llcd

Respondent PMPI is supposed to be a union of 125 supervisors. If

the professional/technical employees are included as members, and
records show that they are 271 in all or much more than the supervisors,
then PMPI will turn out to be a rank and file union with thesupervisors as
members.
This is precisely the situation which the law prohibits. It would create an
obvious conflict of views among the members, or at least between two (2)
groups of members espousing opposing interests. The intent of the law is to
avoid a situation where supervisors would merge with the rank and file, or
where the supervisors' labor organization would represent conflicting
interests, especially where, as in the case at bar, the supervisors will be
commingling with those employees whom they directly supervise in their
own bargaining unit. Members of the supervisory union might refuse to
carry out disciplinary measures against their co-member rank and file
employees. 10
Supervisors have the right to form their own union or labor organization.
What the law prohibits is a union whose membership comprises
of supervisors merging with the rank and file employees because this is
where conflict of interests may arise in the areas of discipline, collective
bargaining and strikes. 11 The professional/technical employees of
petitioner therefore may join the existing rank and file union, or form a
union separate and distinct from the existing union organized by the rank
and file employees of the same company.
As to the confidential employees of the petitioner, the latter has not shown
any proof or compelling reason to exclude them from joining respondent
PMPI and from participating in the certification election, unless these
confidential employees are the same professional/technical employees
whom we find to be occupying rank and file positions. LibLex

WHEREFORE, the petition is GRANTED. The decision of respondent

Secretary of Labor of 7 August 1990, as well as the order of the respondent
Mediator-Arbiter of 28 March 1990, is SET ASIDE. The professional/technical
employees of petitioner Philippine PhosphateFertilizer Corporation
(PHILPHOS) are declared disqualified from affiliating with respondent
Philphos Movement for Progress, Inc. (PMPI).
The Department of Labor is directed to order immediately the conduct of
certification election among the supervisory employees of petitioner,
particularly excluding therefrom its professional and technical employees.
SO ORDERED.
Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.
 (Philippine Phosphate Fertilizer Corp. v. Torres, G.R. No. 98050, [March 17,
|||

1994], 301 PHIL 338-347)

 EN BANC

[G.R. No. 74457. March 20, 1987.]

RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE

COURT, THE STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR,
BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO
CITY, respondents.

Ramon A. Gonzales for petitioner.

DECISION

CRUZ, J :
p

The essence of due process is distilled in the immortal cry of

Themistocles to Alcibiades: "Strike — but hear me first!'" It is this cry
that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A. Cdpr

The said executive order reads in full as follows:

"WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order No.
626 particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against
interprovincial movement of carabaos by transporting carabeef
instead; and.
"WHEREAS, in order to achieve the purposes and objectives
of Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution,
do hereby promulgate the following:
"SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable
institutions and other similar institutions as the Chairman of the
National Meat Inspection Commission may see fit, in the case of
carabeef, and to deserving farmers through dispersal as the Director
of Animal Industry may see fit, in the case of carabaos.
"SECTION 2. This Executive Order shall take effect immediately.
"Done in the City of Manila, this 25th day of October, in the year of
Our Lord, nineteen hundred and eighty.
 (SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated by
the police station commander of Barotac Nuevo, Iloilo, for violation of
the above measure. 1 The petitioner sued for recovery, and the Regional
Trial Court of Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the merits of the
case, the court sustained the confiscation of the carabaos and, since
they could no longer be produced, ordered the confiscation of the bond.
The court also declined to rule on the constitutionality of the executive
order, as raised by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court, * 3 which upheld the trial court, ** and he has now come before us
in this petition for review on certiorari.
prcd

The thrust of his petition is that the executive order is

unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries. His
claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper exercise of the
legislative power by the former President under Amendment No. 6 of
the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan
v. Angeles 5 is not applicable here. The question raised there was the
necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the
requirement then on the basis of due process of law. In doing so,
however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That
is an entirely different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever warranted,
subject only to review by the highest tribunal. 6We have jurisdiction
under the Constitution to "review, revise, reverse, modify or affirm on
appeal or certiorari, as the law or rules of court may provide," final
judgments and orders of lower courts in, among others, all cases
involving the constitutionality of certain measures. 7 This simply means
that the resolution of such cases may be made in the first instance by
these lower courts.
And while it is true that laws are presumed to be constitutional,
that presumption is not by any means conclusive and in fact may be
rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to make the hammer fall,
and heavily," 8 to recall Justice Laurel's trenchant warning. Stated
otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On
the contrary, they should probe the issue more deeply, to relieve the
abscess, paraphrasing another distinguished jurist, 9 and so heal the
wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss of
favor, or popular censure, or any other similar inhibition unworthy of the
bench, especially this Court.LLjur

The challenged measure is denominated an executive order but it is

really presidential decree, promulgating a new rule instead of merely
implementing an existing law. It was issued by President Marcos not for
the purpose of taking care that the laws were faithfully executed but in
the exercise of his legislative authority under Amendment No. 6. It was
provided thereunder that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or whenever the legislature
failed or was unable to act adequately on any matter that in his judgment
required immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force and
effect of law. As there is no showing of any exigency to justify the
exercise of that extraordinary power then, the petitioner has reason,
indeed, to question the validity of the executive order. Nevertheless,
since the determination of the grounds was supposed to have been made
by the President "in his judgment," a phrase that will lead to protracted
discussion not really necessary at this time, we reserve resolution of
this matter until a more appropriate occasion. For the nonce, we confine
ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That is the
ideal. In the case of the due process clause, however, this rule was
deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was submitted
in the Constitutional Convention of 1934, but it was rejected by Delegate
Jose P. Laurel, Chairman of the Committee on the Pill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron
rule" laying down an implacable and immutable command for all seasons
and all persons. Flexibility must be the best virtue of the guaranty. The
very elasticity of the due process clause was meant to make it adapt
easily to every situation, enlarging or constricting its protection as the
changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in a
legal straitjacket that will deprive them of the elbow room they may need
to vary the meaning of the clause whenever indicated. Instead, they have
preferred to leave the import of the protection open-ended, as it were, to
be "gradually ascertained by the process of inclusion and exclusion in
the course of the decision of cases as they arise." 11 Thus, Justice Felix
Frankfurter of the U.S. Supreme Court, for example, would go no farther
than to define due process - and in so doing sums it all up — as nothing
more and nothing less than "the embodiment of the sporting idea of fair
play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed
against the life, liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is
now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages,
as a ringing reminder to all rulers, benevolent or base, that every person,
when confronted by the stern visage of the law, is entitled to have his
say in a fair and open hearing of his cause.
prLL

The closed mind has no place in the open society. It is part of the
sporting idea of fair play to hear "the other side" before an opinion is
formed or a decision is made by those who sit in judgment. Obviously,
one side is only one-half of the question; the other half must also be
considered if an impartial verdict is to be reached based on an informed
appreciation of the issues in contention. It is indispensable that the two
sides complement each other, as unto the bow the arrow, in leading to
the correct ruling after examination of the problem not from one or the
other perspective only but in its totality. A judgment based on less that
this full appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or ignorance, or
worst of all, in repressive regimes, the insolence of power.
The minimum requirements of due process are notice and
hearing 13 which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official arbitrariness.
It is a gratifying commentary on our judicial system that the
jurisprudence of this country is rich with applications of this guaranty as
proof of our fealty to the rule of law and the ancient rudiments of fair
play. We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land," which
Daniel Webster described almost two hundred years ago in the famous
Dartmouth College Case, 14 as "the law which hears before it condemns,
which proceeds upon inquiry and renders judgment only after trial." It
has to be so if the rights of every person are to be secured beyond the
reach of officials who, out of mistaken zeal or plain arrogance, would
degrade the due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience or
there is a rational connection between the fact proved and the fact
ultimately presumed therefrom. 15There are instances when the need for
expeditious action will justify omission of these requisites, as in the
summary abatement of a nuisance per se, like a mad dog on the loose,
which may be killed on sight because of the immediate danger it poses
to the safety and lives of the people. Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and
may be summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his return
to the country he has fled. 16 Filthy restaurants may be summarily
padlocked in the interest of the public health and bawdy houses to
protect the public morals. 17 In such instances, previous judicial hearing
may be omitted without violation of due process in view of the nature of
the property involved or the urgency of the need to protect the general
welfare from a clear and present danger. cdll

The protection of the general welfare is the particular function of

the police power which both restraints and is restrained by due process.
The police power is simply defined as the power inherent in the State to
regulate liberty and property for the promotion of the general
welfare. 18 By reason of its function, it extends to all the great public
needs and is described as the most pervasive, the least limitable and the
most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born
and follows him still after he is dead — from the womb to beyond the
tomb — in practically everything he does or owns. Its reach is virtually
limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as
long as the activity or the property has some relevance to the public
welfare, its regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the
benefit of the greater number.
It is this power that is now invoked by the government to
justify Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under certain
conditions. The original measure was issued for the reason, as
expressed in one of its Whereases, that "present conditions demand that
the carabaos and the buffaloes be conserved for the benefit of the small
farmers who rely on them for energy needs." We affirm at the outset the
need for such a measure. In the face of the worsening energy crisis and
the increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had not
taken steps to protect and preserve them.
A similar prohibition was challenged in United States v.
Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property
without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required
permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by
farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine. Furthermore,
because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more
effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the
police power and declared in part as follows:
"To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
 interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive
upon individuals. . . .
"From what has been said, we think it is clear that the enactment of
the provisions of the statute under consideration was required by `the
interests of the public generally, as distinguished from those of a
particular class' and that the prohibition of the slaughter of carabaos
for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a 'reasonably necessary'
limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire to
enjoy the luxury of animal food, even when by so doing the productive
power of the community may be measurably and dangerously
affected."

In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has a
direct relevance to the public welfare and so is a lawful subject
of Executive Order No. 626. The method chosen in the basic measure is
also reasonably necessary for the purpose sought to be achieved and not
unduly oppressive upon individuals, again following the above-cited
doctrine. There is no doubt that by banning the slaughter of these
animals except where they are at least seven years old if male and
eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or
breeding and preventing their improvident depletion. llcd

But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with equal
certainty that it complies with the second requirement, viz., that there
be a lawful method. We note that to strengthen the original
measure, Executive Order No. 626-A imposes an absolute ban not on
the slaughter of the carabaos but on their movement, providing that "no
carabao regardless of age, sex, physical condition or purpose (sic) and
no carabeef shall be transported from one province to another." The
object of the prohibition escapes us. The reasonable connection between
the means employed and the purpose sought to be achieved by the
questioned measure is missing.
We do not see how the prohibition of the interprovincial transport of
carabaos can prevent their indiscriminate slaughter, considering that
they can be killed anywhere, with no less difficulty in one province than
in another. Obviously, retaining the carabaos in one province will not
prevent their slaughter there, any more than moving them to another
province will make it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says executive order, it
could be easily circumvented by simply killing the animal. Perhaps so.
However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that
there is no reason either to prohibit their transfer as, not to be flippant,
dead meat.
Even if a reasonable relation between the means and the end were
to be assumed, we would still have to reckon with the sanction that the
measure applies for violation of the prohibition. The penalty is outright
confiscation of the carabao or carabeef being transported, to be meted
out by the executive authorities, usually the police only. In the Toribio
Case, the statute was sustained because the penalty prescribed was
fine and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, significantly,
no such trial is prescribed, and the property being transported is
immediately impounded by the police and declared, by the measure
itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by
the police station commander, were returned to the petitioner only after
he had filed a complaint for recovery and given a supersedeas bond of
P12,000.00, which was ordered confiscated upon his failure to produce
the carabaos when ordered by the trial court. The executive order
defined the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a
chance to be heard, thus denying him the centuries-old guaranty of
elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process. It is also
conceded that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial
only. 20 In the exceptional cases accepted, however, there is a
justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of
the need to correct it.
cdphil

In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment. The properties involved
were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the
executive order should not have been proved first in a court of justice,
with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation
thereof should have been pronounced not by the police only but by a
court of justice, which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the questioned
executive order. It is there authorized that the seized property shall "be
distributed to charitable institutions and other similar institutions as the
Chairman of the National Meat Inspection Commission may see fit, in the
case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous
and dangerous condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even corruption. One searches
in vain for the usual standard and the reasonable guidelines, or better
still, the limitations that the said officers must observe when they make
their distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by what
criteria shall they be chosen? Only the officers named can supply the
answer, they and they alone may choose the grantee as they see fit, and
in their own exclusive discretion. Definitely, there is here a "roving
commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate
and therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to conserve
the carabaos is not reasonably necessary to the purpose of the law and,
worse, is unduly oppressive. Due process is violated because the owner
of the property confiscated is denied the right to be heard in his defense
and is immediately condemned and punished. The conferment on the
administrative authorities of the power to adjudge the guilt of the
supposed offender is a clear encroachment on judicial functions and
militates against the doctrine of separation of powers. There is, finally,
also an invalid delegation of legislative powers to the officers mentioned
therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby
declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police
station commander who confiscated the petitioner's carabaos is not
liable in damages for enforcing the executive order in accordance with
its mandate. The law was at that time presumptively valid, and it was his
obligation, as a member of the police, to enforce it. It would have been
impertinent of him, being a mere subordinate of the President, to declare
the executive order unconstitutional and, on his own responsibility alone,
refuse to execute it. Even the trial court, in fact, and the Court of
Appeals itself did not feel they had the competence, for all their superior
authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have reached
us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for
his spirit. Without the present challenge, the matter would have ended in
that pump boat in Masbate and another violation of the Constitution, for
all its obviousness, would have been perpetrated, allowed without
protest, and soon forgotten in the limbo of relinquished rights.
LLpr

The strength of democracy lies not in the rights it guarantees but in

the courage of the people to invoke them whenever they are ignored or
violated. Rights are but weapons on the wall if, like expensive tapestry,
all they do is embellish and impress. Rights, as weapons, must be a
promise of protection. They become truly meaningful, and fulfill the role
assigned to them in the free society, if they are kept bright and sharp
with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the Court of
Appeals is reversed. The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., on leave
 (Ynot v. Intermediate Appellate Court, G.R. No. 74457, [March 20, 1987],
|||

232 PHIL 615-632)

 EN BANC

[G.R. No. 131652. March 9, 1998.]

BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A. SAVELLANO

JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE
PHILIPPINES, respondents.

[G.R. No. 131728. March 9, 1998.]

BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE MAXIMO

SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and
JUVIELYN Y. PUNONGBAYAN, respondents.

Fortun, Narvasa & Salazar for petitioner Bayani M. Alonte.

Ramon C. Casano for petitioner in 131728.
The Law Firm of Raymundo A. Armovit for respondent Judge.

SYNOPSIS

Bayani M. Alonte, then incumbent Mayor of Biñan, Laguna and

Buenaventura Concepcion were charged with rape based on the
complaint of Juvielyn Punongbayan. During the pendency of the petition
for change of venue, Juvielyn, assisted by her parents and counsel,
executed an affidavit of desistance. The petition for change of venue was
granted and the case was raffled to respondent judge who issued
warrants of arrest for petitioners. Juvielyn reiterated her "decision to
abide by her Affidavit of Desistance." Petitioners pleaded not guilty when
arraigned and waived pre-trial. Immediately following arraignment the
prosecution presented Juvielyn who testified to the validity and
voluntariness of her affidavit of desistance and that she has no interest
in further prosecuting the action. The Prosecution then manifested that
the State had no further evidence against the accused to prove the guilt
of the accused. She then moved for the "dismissal of the case" against
both accused-petitioners. The two accused did not present any
countervailing evidence, did not take the witness stand nor admitted the
act charged in the information. Thereupon, respondent judge said that
"the case was submitted for decision." On December 18, 1997, a decision
was rendered convicting petitioners of rape. IEaCDH

Due process in criminal proceedings, in particular, require (a) that

the court or tribunal trying the case is properly clothed with judicial
power to hear and determine the matter before it; (b) that jurisdiction is
lawfully acquired by it over the person of the accused; (c) that the
accused is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing. The above constitutional and
jurisprudential postulates, by now elementary and deeply imbedded in
our own criminal justice system, are mandatory and indispensable.
The order of trial in criminal cases is clearly spelled out in Section
3, Rule 119, of the Rules of Court which should be strictly adhered to.
There can be no short-cut to the legal process, and there can be no
excuse for not affording an accused his full day in court. Due process,
rightly occupying the first and foremost place of honor in our Bill of
Rights, is an enshrined and invaluable right that cannot be denied even
to the most undeserving.
An affidavit of desistance by itself, even when construed as a
pardon in the so-called "private crimes," is not a ground for the dismissal
of the criminal case once the action has been instituted.
Prosecutors are expected not merely to discharge their duties with
the highest degree of excellence, professionalism and skill but also to
act each time with utmost devotion and dedication to duty. The Court is
hopeful that the zeal which has been exhibited many times in the past,
although regrettably a disappointment on few occasions, will not be
wanting in the proceedings yet to follow.TEDaAc

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; DUE PROCESS IN

CRIMINAL PROCEEDINGS; REQUISITES. — Jurisprudence acknowledges
that due process in criminal proceedings, in particular, require (a) that
the court or tribunal trying the case is properly clothed with judicial
power to hear and determine the matter before it; (b) that jurisdiction is
lawfully acquired by it over the person of the accused; (c) that the
accused is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing. The above constitutional and
jurisprudential postulates, by now elementary and deeply imbedded in
our own criminal justice system, are mandatory and indispensable. The
principles find universal acceptance and are tersely expressed in the oft-
quoted statement that procedural due process cannot possibly be met
without a "law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial."
2. ID.; ID.; THERE CAN BE NO SHORT-CUT TO THE LEGAL PROCESS
AND THERE CAN BE NO EXCUSE FOR NOT AFFORDING AN ACCUSED HIS
FULL DAY IN COURT. — The existence of the waiver must be positively
demonstrated. The standard of waiver requires that it "not only must be
voluntary, but must be knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and likely consequences."
Mere silence of the holder of the right should not be so construed as a
waiver of right, and the courts must indulge every reasonable
presumption against waiver. The Solicitor General has aptly discerned a
few of the deviations from what otherwise should have been the regular
course of trial: (1) Petitioners have not been directed to present
evidence to prove their defenses nor have dates therefor been scheduled
for the purpose; (2) the parties have not been given the opportunity to
present rebutting evidence nor have dates been set by respondent Judge
for the purpose; and (3) petitioners have not admitted the act charged in
the Information so as to justify any modification in the order of trial.
There can be no short-cut to the legal process, and there can be no
excuse for not affording an accused his full day in court. Due process,
rightly occupying the first and foremost place of honor in our Bill of
Rights, is an enshrined and invaluable right that cannot be denied even
to the most undeserving.
 3. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; SHOULD NOT BE
GIVEN PROBATIVE VALUE. — In the case of People vs. Junio, the Court
held that: Thus, we have declared that at most the retraction is an
afterthought which should not be given value. It would be a dangerous
rule to reject the testimony taken before the court of justice simply
because the witness who has given it later on changed his mind for one
reason or another. Such a rule will make a solemn trial a mockery and
place the investigation at the mercy of unscrupulous witnesses. Because
affidavits of retraction can easily be secured from poor and ignorant
witnesses, usually for monetary consideration, the Court has invariably
regarded such affidavits as exceedingly unreliable. [ Flores vs. People,
211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court , 184
SCRA 128; People vs. Galicia, 123 SCRA 550.]
4. ID.; COURTS; WITH INHERENT POWER TO COMPEL THE
ATTENDANCE OF ANY PERSON TO TESTIFY. — Courts have the inherent
power to compel the attendance of any person to testify in a case
pending before it, and a party is not precluded from invoking that
authority.
5. ID.; EVIDENCE; AFFIDAVIT OF DESISTANCE; THOUGH
CONSTRUED AS PARDON IN "PRIVATE CRIMES," IT IS NOT A GROUND
FOR DISMISSAL OF CRIMINAL ACTION. — An affidavit of desistance by
itself, even when construed as a pardon in the so-called "private crimes,"
is not a ground for the dismissal of the criminal case once the action has
been instituted. The affidavit, nevertheless, may, as so earlier intimated,
possibly constitute evidence whose weight or probative value, like any
other piece of evidence, would be up to the court for proper
evaluation.EaSCAH

6. ID.; ID.; DISQUALIFICATION OF JUDGES; IT IS NOT ENOUGH THAT

A COURT IS IMPARTIAL, IT MUST ALSO BE PERCEIVED TO BE
IMPARTIAL. — Relative to the prayer for the disqualification of Judge
Savellano from further hearing the case, the Court is convinced that
Judge Savellano should, given the circumstances, be best excused from
the case. Possible animosity between the personalities here involved
may not all be that unlikely. The pronouncement of this Court in the old
case of Luque vs. Kayanan could again be said: All suitors are entitled to
nothing short of the cold neutrality of an independent, wholly-free,
disinterested and unbiased tribunal. Second only to the duty of rendering
a just decision is the duty of doing it in a manner that will not arouse any
suspicion as to the fairness and integrity of the Judge. It is not enough
that a court is impartial, it must also be perceived as impartial.
7. ID.; ATTORNEYS; USE OF INTEMPERATE LANGUAGE AND UNKIND
ASCRIPTIONS CAN HARDLY BE JUSTIFIED. — While the lawyer in
promoting the cause of his client or defending his rights might do so with
fervor, simple courtesy demands that it be done within the bounds of
propriety and decency. The use of intemperate language and unkind
ascriptions hardly can be justified nor can have a place in the dignity of
judicial forum. Civility among members of the legal profession is a
treasured tradition that must at no time be lost to it.
DHEcCT

8. ID.; CRIMINAL PROCEDURE; PROSECUTORS; EXPECTED TO ACT

WITH UTMOST DEVOTION AND DEDICATION TO DUTY. — Finally, it may be
opportune to say, once again, that prosecutors are expected not merely
to discharge their duties with the highest degree of excellence,
professionalism and skill but also to act each time with utmost devotion
and dedication to duty. The Court is hopeful that the zeal which has been
exhibited many times in the past, although regrettably a disappointment
on few occasions, will not be wanting in the proceedings yet to follow.
PUNO, J., separate opinion:
1. REMEDIAL LAW; EVIDENCE; RECANTATION; CONSTRUED. — A
recantation usually applies to a repudiation by a complainant or a
witness, either for the prosecution or the defense, who has previously
given an extrajudicial statement or testimony in court. Repudiation may
be made in writing, i.e., by sworn statement, or by testifying on the
witness stand.
2. ID.; ID.; ID.; GENERALLY LOOKED UPON WITH DISFAVOR. — Mere
retraction by a witness or by complainant of his or her testimony does
not necessarily vitiate the original testimony or statement, if credible.
The general rule is that courts look with disfavor upon retractions of
testimonies previously given in court. This rule applies to crimes,
offenses as well as to administrative offenses. The reason is because
affidavits of retraction can easily be secured from poor and ignorant
witnesses, usually through intimidation or for monetary consideration.
Moreover, there is always the probability that they will later be
repudiated and there would never be an end to criminal litigation. It
would also be a dangerous rule for courts to reject testimonies solemnly
taken before courts of justice simply because the witnesses who had
given them later on changed their minds for one reason or another. This
would make solemn trials a mockery and place the investigation of the
truth at the mercy of unscrupulous witnesses.
3. ID.; ID.; ID.; ID.; EXCEPTION. — The general rule notwithstanding,
the affidavit should not be peremptorily dismissed as a useless scrap of
paper. There are instances when a recantation may create serious
doubts as to the guilt of the accused. A retracted statement or testimony
must be subject to scrupulous examination. The previous statement or
testimony and the subsequent one must be carefully compared and the
circumstances under which each was given and the reasons and motives
for the change carefully scrutinized. The veracity of each statement or
testimony must be tested by the credibility of the witness which is left
for the judge to decide. In short, only where there exists special
circumstances in the case which when coupled with the retraction raise
doubts as to the truth of the testimony or statement given, can a
retraction be considered and upheld.
4. ID.; ID.; AFFIDAVIT OF DESISTANCE, GENERALLY WITH NO
PERSUASIVE EFFECT. — An affidavit of desistance is understood to be a
sworn statement executed by a complainant in a criminal or
administrative case that he or she is discontinuing the action filed upon
his or her complaint for whatever reason he or she may cite. The court
attaches no persuasive value to a desistance especially when executed
as an afterthought. However, as in retractions, an affidavit of desistance
calls for a reexamination of the records of the case.cAHDES

5. ID.; ID.; ID.; WEIGHT IN PRIVATE CRIMES. — In private crimes, an

affidavit of desistance filed by a private complainant is also frowned
upon by the courts. Although such affidavit may deserve a second look
at the case, there is hardly an instance when this Court upheld it in
private crimes and dismissed the case on the sole basis thereof. Indeed,
a case is not dismissed upon mere affidavit of desistance of the
complainant, particularly where there exist special circumstances that
raise doubts as to the reliability of the affidavit.
6. ID.; CRIMINAL PROCEDURE; PRIVATE CRIMES; CANNOT BE
PROSECUTED EXCEPT UPON COMPLAINT OF OFFENDED PARTY. —
Private crimes cannot be prosecuted except upon complaint filed by the
offended party. In adultery and concubinage, the offended party must
implead both the guilty parties and must not have consented or pardoned
the offenders. In seduction, abduction, rape and acts of lasciviousness,
the complaint must be filed by the offended party or her parents,
grandparents or guardian. The complainant must not have expressly
pardoned the offender. The filing of a complaint in private crimes is
merely a condition precedent to the exercise by the proper authorities of
the power to prosecute the guilty parties. It is the complaint that starts
the prosecutory proceeding without which the fiscal and the court
cannot exercise jurisdiction over the case. Once the complaint is filed,
the action proceeds just as in any other crime.
7. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; MODES. —
Article 344 also provides for the extinction of criminal liability in private
crimes. It mentions two modes: pardon and marriage, which when validly
and timely made, result in the total extinction of criminal liability of the
offender. The pardon in private crimes must be made before the
institution of the criminal action. In adultery and concubinage, the
pardon may be express or implied while in seduction, abduction, rape
and acts of lasciviousness, the pardon must be express. In all cases, the
pardon must come prior to the institution of the criminal action. After the
case has been filed in court, any pardon made by the private
complainant, whether by sworn statement or on the witness stand,
cannot extinguish criminal liability. The only act that extinguishes the
penal action and the penalty that may have been imposed is the
marriage between the offender and the offended party.
8. ID.; ID.; PARDON IN PRIVATE CRIMES; MUST COME BEFORE
INSTITUTION OF CRIMINAL ACTION. — Pardon by the offended party
extinguishes criminal liability when made while the crime is still
"private" and within the control of the offended party. But once the case
is filed in court, the pardon cannot ipso facto operate to dismiss the
case. After the institution of the criminal action, any pardon given by the
complainant to the offender would be unavailing, except of course when
the offender validly marries the offended party. The offended party's
pardon of the offender in a seduction case after the criminal action had
been instituted constitutes no bar to said action. A pardon given in a
rape case after the filing of the action in court "comes too late to hide
the shameful occurrence from public notice."
9. ID.; ID.; DESISTANCE, NOT A GROUND. — Article 344 does not
include desistance of the offended party from prosecuting the case as a
ground for extinction of criminal liability whether total or partial. Hence,
only when the desistance is grounded on forgiveness and pardon and is
made before the institution of the criminal action, can it extinguish
criminal liability. Desistance, per se, is not equivalent to pardon.
10. ID.; ID.; ID.; CASE AT BAR. — In the case at bar, the "Affidavit of
Desistance" of Juvielyn is not an express pardon of the accused and the
crime committed. Private complainant desisted from prosecuting the
case against the petitioners because she wished "to start life anew and
live normally again." She reiterated this reason on the witness stand.
She complained that members of the media were bothering and
harassing her and that she wanted to go back to her normal life. She
never said that she forgave the petitioners. She did not absolve them
from their culpability. She did not give any exculpatory fact that would
raise doubts about her rape. She did not say that she consented to
petitioner Alonte's acts. Moreover, the rape case is already in court and
it is no longer her right to decide whether or not the charge should be
continued.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS;
ACCUSED DENIED THEREOF WHERE JUDGMENT OF CONVICTION WAS
RENDERED WITHOUT TRIAL. — Justice Puno agrees with the majority
that the November 7, 1997 proceedings could not have been a trial on the
merits. First of all, the proceedings did not conform with the procedure
for trial as provided in the 1985 Rules on Criminal Procedure. In the case
at bar, petitioners were never instructed to present evidence to prove
their defenses. The parties were never given the opportunity to present
their respective evidence rebutting the testimony of private complainant.
There was no admission by petitioners of the charge in the information
as to justify a change in the order of trial. Second, the admission of
private complainant's affidavit of October 21, 1996 was made solely in
response to respondent judge's own questioning. It was this affidavit
which respondent judge used to convict the petitioners. This affidavit,
however, was not marked nor was it formally offered before the court.
Third, where there is a doubt as to the nature of the criminal
proceedings before the court, this doubt must be resolved in favor of the
accused who must be given the widest latitude of action to prove his
innocence. It is in petitioners' favor that the proceedings of November 7,
1997 be treated as a hearing on the motion to dismiss, not a trial on the
merits. To rule otherwise will effectively deny petitioners due process
and all the other rights of an accused under the Bill of Rights and our
Rules in Criminal Procedure. AHacIS

12. REMEDIAL LAW; CRIMINAL PROCEDURE; RULES STRICTLY

ADHERED TO. — Our criminal rules of procedure strictly provide the step
by step procedure to be followed by courts in cases punishable by death.
This rule also applies to all other criminal cases, particularly where the
imposable penalty is reclusion perpetua. The reason for this is to assure
that the State makes no mistake in taking life and liberty except that of
the guilty.
13. ID.; EVIDENCE; EVIDENCE NOT FORMALLY OFFERED, NOT
TAKEN INTO CONSIDERATION. — Evidence not formally offered in court
will not be taken into consideration by the court in disposing of the
issues of the case. Any evidence which a party desires to submit for the
consideration of the court must formally be offered by him, otherwise it
is excluded and rejected. Indeed, following respondent judge's finding
and assuming that the November 7, 1997 hearing was already a trial on
the merits, petitioners were never afforded their right to confront and
cross-examine the witness. The court did not, at the very least, inquire
as to whether the petitioners wanted to cross-examine private
complainant with respect to her affidavit of October 21, 1996. No
opportunity to cross-examine was afforded petitioners and their counsels
such that they cannot be deemed to have waived said right by inaction.
 DECISION

VITUG, J :
p

Pending before this Court are two separate petitions, one filed by
petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by
petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that
assail the decision of respondent Judge Maximo A. Savellano, Jr., of the
Regional Trial Court ("RTC"), Branch 53, of Manila finding both petitioners
guilty beyond reasonable doubt of the crime of rape. The two petitions
were consolidated. llcd

On 05 December 1996, an information for rape was filed against

petitioners Bayani M. Alonte, an incumbent Mayor of Biñan, Laguna, and
Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn
Punongbayan. The information contained the following averments; thus:
"That on or about September 12, 1996, in Sto. Tomas, Biñan, Laguna,
and within the jurisdiction of this Honorable court, the above named
accused, who is the incumbent mayor of Biñan, Laguna after giving
complainant-child drinking water which made her dizzy and weak, did
then and there willfully, unlawfully and feloniously have carnal
knowledge with said JUVIELYN PUNONGBAYAN against her will and
consent, to her damage and prejudice.

"That accused Buenaventura 'Wella' Concepcion without having

participated as principal or accessory assisted in the commission of
the offense by bringing said complainant child to the rest house of
accused Bayani 'Arthur' Alonte at Sto. Tomas, Biñan, Laguna and after
receiving the amount of P1,000.00 left her alone with Bayani Alonte
who subsequently raped her.
Contrary to Law." 1

The case was docketed Criminal Case No. 9619-B and assigned by
raffle to Branch 25 of the RTC of Biñan, Laguna, presided over by Judge
Pablo B. Francisco.
On 13 December 1996, Juvie-lyn Punongbayan, through her counsel
Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor
("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court
Administrator a Petition for a Change of Venue (docketed Administrative
Matter No. 97-1-12-RTC) to have the case transferred and tried by any of
the Regional Trial Courts in Metro Manila.
During the pendency of the petition for change of venue, or on 25
June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel,
executed an affidavit of desistance, quoted herein in full, as follows:
AFFIDAVIT OF DESISTANCE
"I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of
No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City,
duly assisted by private legal counsel and my parents, after having
duly sworn in accordance with law, depose and say:
"1. That I am the Complainant in the rape case filed against Mayor
Bayani 'Arthur' Alonte of Biñan, Laguna, with the RTC-Branch 25 of
Biñan, Laguna;
"2. That the case has been pending for some time, on preliminary
issues, specifically, (a) change of venue, filed with the Supreme
Court; (b) propriety of the appeal to the Court of Appeals, and after its
denial by said court, brought to the Office of the President, on the
veracity of the findings of the Five-Man Investigating Panel of the
State Prosecutor's Office, and the Secretary of Justice, and (c) a
hold-departure order filed with the Biñan Court;
"3. That the legal process moves ever so slowly, and meanwhile, I
have already lost two (2) semesters of my college residence. And
when the actual trial is held after all the preliminary issues are
finally resolved, I anticipate a still indefinite suspension of my
schooling to attend the hearings;
"4. That during the entire period since I filed the case, my family has
lived a most abnormal life: my father and mother had to give up their
jobs; my younger brother, who is in fourth grade, had to stop his
schooling, like myself;
"5. That I do not blame anyone for the long, judicial process, I simply
wish to stop and live elsewhere with my family, where we can start
life anew, and live normally once again;
"6. That I pray that I be allowed to withdraw my complaint for rape
and the other charge for child abuse wherein the Five-Man
Investigating Panel of the Office of the State Prosecutor found a
prima facie case although the information has not been filed, and
that I will not at any time revive this, and related cases or file new
cases, whether criminal, civil, and or administrative, here or
anywhere in the Philippines;
"7. That I likewise realize that the execution of this Affidavit will put
to doubt my credibility as a witness-complainant;
"8. That this is my final decision reached without fear or favor,
premised on a corresponding commitment that there will be no
reprisals in whatever form, against members of the police force or
any other official of officer, my relatives and friends who extended
assistance to me in whatever way, in my search for justice.
"WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon
City.
"(Sgd) JUVIE-LYN Y. PUNONGBAYAN
Complainant
"Assisted by:
(Sgd) ATTY. REMEDIOS C. BALBIN
Private Prosecutor
"In the presence of:
(Sgd) PABLO PUNONGBAYAN
Father
(Sgd) JULIE Y. PUNONGBAYAN
Mother
"SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in
Quezon City.
"(Sgd) Illegible
Administering Officer" 2
 On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners,
moved to have the petition for change of venue dismissed on the ground
that it had become moot in view of complainant's affidavit of desistance.
On 22 August 1997, ACSP Guiyab filed his comment on the motion to
dismiss. Guiyab asserted that he was not aware of the desistance of
private complainant and opined that the desistance, in any case, would
not produce any legal effect since it was the public prosecutor who had
direction and control of the prosecution of the criminal action. He prayed
for the denial of the motion to dismiss.
On 02 September 1997, this Court issued a Resolution
(Administrative Matter No. 97-1-12-RTC), granting the petition for change
of venue. The Court said:
"These affidavits give specific names, dates, and methods being used
to abort, by coercion or corruption, the prosecution of Criminal Case
No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion
to contend that the fear of the petitioner, her private counsel and her
witnesses are too generalized if not fabricated. Indeed, the
probability that in desisting from pursuing her complaint for rape,
petitioner, a minor, may have succumbed to some illicit influence and
undue pressure. To prevent possible miscarriage of justice is a good
excuse to grant the petition to transfer the venue of Criminal Case
No. 9619-B from Biñan, Laguna to the City of Manila.
"IN VIEW WHEREOF, the Petition for Change of Venue from Biñan,
Laguna to the City of Manila is granted. The Executive Judge of RTC
Manila is ordered to raffle Crim. Case No. 9619-B to any of its
branches. The judge to whom Crim. Case No. 9619-B shall be raffled
shall resolve the petitioner's Motion to Resume Proceedings filed in
Br. XXV of the RTC of Biñan, Laguna and determine the voluntariness
and validity of petitioner's desistance in light of the opposition of the
public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The
branch clerk of court of Br. XXV of the RTC of Biñan, Laguna is
ordered to personally deliver to the Executive Judge of Manila the
complete records of Crim. Case No. 9619-B upon receipt of this
Resolution." 3

On 17 September 1997, the case, now re-docketed Criminal Case No.

97-159955 by the Clerk of Court of Manila, was assigned by raffle to
Branch 53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr.,
presiding.
On 07 October 1997, Juvie-lyn Punongbayan, through Attorney
Balbin, submitted to the Manila court a "compliance" where she
reiterated "her decision to abide by her Affidavit of Desistance."
In an Order, dated 09 October 1997, Judge Savellano found probable
cause for the issuance of warrants for the arrest of petitioners Alonte
and Concepcion "without prejudice to, and independent of, this Court's
separate determination as the trier of facts, of the voluntariness and
validity of the [private complainant's] desistance in the light of the
opposition of the public prosecutor, Asst. Chief State Prosecutor
Leonardo Guiyab."
On 02 November 1997, Alonte voluntarily surrendered himself to
Director Santiago Toledo of the National Bureau of Investigation ("NBI"),
while Concepcion,. in his case, posted the recommended bail of
P150,000.00.
 On 07 November 1997, petitioners were arraigned and both pleaded
"not guilty" to the charge. The parties manifested that they were waiving
pre-trial. The proceedings forthwith went on. Per Judge Savellano, both
parties agreed to proceed with the trial of the case on the
merits. 4 According to Alonte, however, Judge Savellano allowed the
prosecution to present evidence relative only to the question of the
voluntariness and validity of the affidavit of desistance. 5
It would appear that immediately following the arraignment, the
prosecution presented private complainant Juvie-lyn Punongbayan
followed by her parents. During this hearing, Punongbayan affirmed the
validity and voluntariness of her affidavit of desistance. She stated that
she had no intention of giving positive testimony in support of the
charges against Alonte and had no interest in further prosecuting the
action. Punongbayan confirmed: (i) That she was compelled to desist
because of the harassment she was experiencing from the media, (ii)
that no pressures nor influence were exerted upon her to sign the
affidavit of desistance, and (iii) that neither she nor her parents received
a single centavo from anybody to secure the affidavit of desistance.
Assistant State Prosecutor Marilyn Campomanes then presented, in
sequence: (i) Punongbayan's parents, who affirmed their signatures on
the affidavit of desistance and their consent to their daughter's decision
to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto
Nofuente, who attested that the affidavit of desistance was signed by
Punongbayan and her parents in his presence and that he was satisfied
that the same was executed freely and voluntarily. Finally, Campomanes
manifested that in light of the decision of private complainant and her
parents not to pursue the case, the State had no further evidence
against the accused to prove the guilt of the accused. She, then, moved
for the "dismissal of the case" against both Alonte and Concepcion.
Thereupon, respondent judge said that "the case was submitted for
decision." 6
On 10 November 1997, petitioner Alonte filed an "Urgent Motion to
Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment
filed on the same date, stated that the State interposed "no objection to
the granting of bail and in fact Justice and Equity dictates that it joins
the accused in his prayer for the granting of bail."
Respondent judge did not act on the application for bail.
On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve
the Motion for Bail. On even date, ASP Campomanes filed a Manifestation
deeming "it proper and in accord with justice and fair play to Join the
aforestated motion."
Again, the respondent judge did not act on the urgent motion.
The records would indicate that on the 25th November 1997, 1st
December 1997, 8th December 1997 and 10th December 1997, petitioner
Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution,
respectively, in respect of his application for bail. None of these motions
were acted upon by Judge Savellano.
On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead
counsel for petitioner Alonte received a notice from the RTC Manila
Branch 53, notifying him of the schedule of promulgation, on 18
December 1997, of the decision on the case. The counsel for accused
Concepcion denied having received any notice of the scheduled
promulgation.
On 18 December 1997, after the case was called, Atty. Sigrid Fortun
and Atty. Jose Flaminiano manifested that Alonte could not attend the
promulgation of the decision because he was suffering from mild
hypertension and was confined at the NBI clinic and that, upon the other
hand, petitioner Concepcion and his counsel would appear not to have
been notified of the proceedings. The promulgation, nevertheless, of the
decision proceeded in absentia; the reading concluded:
"WHEREFORE, judgment is hereby rendered finding the two (2)
accused Mayor Bayani Alonte and Buenaventura 'Wella' Concepcion
guilty beyond reasonable doubt of the heinous crime of RAPE, as
defined and penalized under Article 335(2) in relation to Article 27 of
the Revised Penal Code, as amended by Republic Act No. 7659, for
which each one of the them is hereby sentenced to suffer the
indivisible penalty of RECLUSION PERPETUA or imprisonment for
twenty (20) years; and one (1) day to forty (40) years.
"In view thereof, the bail bond put up by the accused Buenaventura
'Wella' Concepcion for his provisional liberty is hereby cancelled and
rendered without any further force and effect.
"SO ORDERED." 7

On the same day of 18th December 1997, petitioner Alonte filed a

motion for reconsideration. Without waiting for its resolution, Alonte filed
the instant "Ex Abundante Ad Cautelam" for certiorari,
Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and
for Disciplinary Action against an RTC Judge." Petitioner Concepcion
later filed his own petition forcertiorariand mandamus with the Court.
Alonte submits the following grounds in support of his petition
seeking to have the decision nullified and the case remanded for new
trial; thus:
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo (Annex A) without affording the petitioner
his Constitutional right to due process of law (Article III, §1,
Constitution).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo in violation of the mandatory provisions of
the Rules on Criminal Procedure, specifically, in the conduct and
order of trial (Rule 119) prior to the promulgation of a judgment (Rule
120; Annex A).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when, in total disregard of
the Revised Rules on Evidence and existing doctrinal jurisprudence,
he rendered a Decision in the case a quo (Annex A) on the basis of
two (2) affidavits (Punongbayan's and Balbin's) which were neither
marked nor offered into evidence by the prosecution , nor without
giving the petitioner an opportunity to cross-examine the
affiants thereof, again in violation of petitioner's right to due process
(Article III, §1, Constitution).
"The respondent Judge committed grave abuse of discretion
amounting to lack or excess of jurisdiction when he rendered a
Decision in the case a quo without conducting a trial on the facts
 which would establish that complainant was raped by petitioner (Rule
119, Article III, §1, Constitution), thereby setting a dangerous
precedent where heinous offenses can result in conviction without
trial (then with more reason that simpler offenses could end up with
the same result)." 8

On the other hand, Concepcion relies on the following grounds in

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

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

According to petitioners, however, there was no such trial for what

was conducted on 07 November 1997, aside from the arraignment of the
accused, was merely a proceeding in conformity with the resolution of
this Court in Administrative Case No. 97-1-12-RTC to determine the
validity and voluntariness of the affidavit of desistance executed by
Punongbayan.
It does seem to the Court that there has been undue precipitancy in
the conduct of the proceedings. Perhaps the problem could have well
been avoided had not the basic procedures been, to the Court's
perception taken lightly. And in this shortcoming, looking at the records
of the case, the trial court certainly is not alone to blame.
Section 14, paragraphs (1) and (2), of Article III, of the Constitution
provides the fundamentals.
 "(1) No person shall be held to answer for a criminal offense without
due process of law.
"(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has
been duly notified and his failure to appear is unjustifiable."

Jurisprudence 11 acknowledges that due process in criminal

proceedings, in particular, require (a) that the court or tribunal trying the
case is properly clothed with judicial power to hear and determine the
matter before it; (b) that jurisdiction is lawfully acquired by it over the
person of the accused; (c) that the accused is given an opportunity to be
heard; and (d) that judgment is rendered only upon lawful hearing. 12
The above constitutional and jurisprudential postulates, by now
elementary and deeply imbedded in our own criminal justice system, are
mandatory and indispensable. The principles find universal acceptance
and are tersely expressed in the oft-quoted statement that procedural
due process cannot possibly be met without a "law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after
trial." 13
The order of trial in criminal cases is clearly spelled out in Section
3, Rule 119, of the Rules of Court; viz:
"Sec. 3. Order of trial. — The trial shall proceed in the following order:
"(a) The prosecution shall present evidence to prove the charge and,
in the proper case, the civil liability.
"(b) The accused may present evidence to prove his defense, and
damages, if any, arising from the issuance of any provisional remedy
in the case.
"(c) The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main issue.
"(d) Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to argue
orally or to submit memoranda.
"(e) However, when the accused admits the act or omission charged
in the complaint or information but interposes a lawful defense, the
order of trial may be modified accordingly."

In Tabao vs. Espina, 14 the Court has underscored the need to adhere
strictly to the above rules. It reminds that —
". . . each step in the trial process serves a specific purpose. In the
trial of criminal cases, the constitutional presumption of innocence in
favor of an accused requires that an accused be given sufficient
opportunity to present his defense. So, with the prosecution as to its
evidence.
"Hence, any deviation from the regular course of trial should always
take into consideration the rights of all the parties to the case,
whether in the prosecution or defense. In the exercise of their
 discretion, judges are sworn not only to uphold the law but also to do
what is fair and just. The judicial gavel should not be wielded by one
who has an unsound and distorted sense of justice and fairness.15

While Judge Savellano has claimed in his Comment that —

"Petitioners-accused were each represented during the hearing on 07
November 1997 with their respective counsel of choice. None of their
counsel interposed an intention to cross-examine rape victim
Juvielyn Punongbayan, even after she attested, in answer to
respondent judge's clarificatory questions, the voluntariness and
truth of her two affidavits — one detailing the rape and the other
detailing the attempts to buy her desistance; the opportunity was
missed/not used, hence waived. The rule of case law is that the right
to confront and cross-examine a witness 'is a personal one and may
be waived."' (emphasis supplied) —

It should be pointed out, however, that the existence of the waiver must
be positively demonstrated. The standard of waiver requires that it "not
only must be voluntary, but must be knowing, intelligent, and done with
sufficient awareness of the relevant circumstances and likely
consequences." 16 Mere silence of the holder of the right should not be so
construed as a waiver of right, and the courts must indulge every
reasonable presumption against waiver. 17 The Solicitor General has aptly
discerned a few of the deviations from what otherwise should have been
the regular course of trial: (1) Petitioners have not been directed to
present evidence to prove their defenses nor have dates therefor been
scheduled for the purpose; 18 (2) the parties have not been given the
opportunity to present rebutting evidence nor have dates been set by
respondent Judge for the purpose; 19 and (3) petitioners have not
admitted the act charged in the Information so as to justify any
modification in the order of trial. 20 There can be no short-cut to the legal
process, and there can be no excuse for not affording an accused his full
day in court. Due process, rightly occupying the first and foremost place
of honor in our Bill of Rights, is an enshrined and invaluable right that
cannot be denied even to the most undeserving.
This case, in fine, must be remanded for further proceedings. And,
since the case would have to be sent back to the court a quo,
this ponencia has carefully avoided making any statement or reference
that might be misconstrued as prejudgment or as pre-empting the trial
court in the proper disposition of the case. The Court likewise deems it
appropriate that all related proceedings therein, including the petition
for bail, should be subject to the proper disposition of the trial court. LLpr

Nevertheless, it is needful to stress a few observations on the

affidavit of desistance executed by the complainant.

Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan,

hereinbefore quoted, does not contain any statement that disavows the
veracity of her complaint against petitioners but merely seeks to "be
allowed to withdraw" her complaint and to discontinue with the case for
varied other reasons. On this subject, the case of People
vs. Junio, 21 should be instructive. The Court has there explained:
"The appellant's submission that the execution of an Affidavit of
Desistance by complainant who was assisted by her mother
supported the 'inherent incredibility of prosecution's evidence' is
specious. We have said in so many cases that retractions are
 generally unreliable and are looked upon with considerable disfavor
by the courts. The unreliable character of this document is shown by
the fact that it is quite incredible that after going through the
process of having accused-appellant arrested by the police,
positively identifying him as the person who raped her, enduring the
humiliation of a physical examination of her private parts, and then
repeating her accusations in open court by recounting her anguish,
Maryjane would suddenly turn around and declare that '[a]fter a
careful deliberation over the case, (she) find(s) that the same does
not merit or warrant criminal prosecution.'
"Thus, we have declared that at most the retraction is an
afterthought which should not be given probative value. It would be a
dangerous rule to reject the testimony taken before the court of
justice simply because the witness who has given it later on changed
his mind for one reason or another. Such a rule will make a solemn
trial a mockery and place the investigation at the mercy of
unscrupulous witnesses. Because affidavits of retraction can easily
be secured from poor and ignorant witnesses, usually for monetary
consideration, the Court has invariably regarded such affidavits as
exceedingly unreliable. [Flores vs. People, 211 SCRA 622, citing De
Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs.
Galicia, 123 SCRA 550.] 22

The Junio rule is no different from ordinary criminal cases. For

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

It may not be amiss to state that courts have the inherent power to
compel the attendance of any person to testify in a case pending before
it, and a party is not precluded from invoking that authority. 25
Secondly, an affidavit of desistance by itself, even when construed
as a pardon in the so-called "private crimes," is not a ground for the
dismissal of the criminal case once the action has been instituted. The
affidavit, nevertheless, may, as so earlier intimated, possibly constitute
evidence whose weight or probative value, like any other piece of
evidence, would be up to the court for proper evaluation. The decision
in Junio went on to hold —
"While '[t]he offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a complaint filed
by the offended party or her parents, grandparents, or guardian, nor
in any case, if the offender has been expressly pardoned by the above
named persons, as the case may be,' [Third par. of Art. 344,
The Revised Penal Code,] the pardon to justify the dismissal of the
complaint should have been made prior to the institution of the
criminal action. [People vs. Entes, 103 SCRA 162, cited by People vs.
Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente,
210 SCRA 647.] Here, the motion to dismiss to which the affidavit of
desistance is attached was filed after the institution of the criminal
case. And, affiant did not appear to be serious in 'signifying (her)
intention to refrain from testifying' since she still completed her
testimony notwithstanding her earlier affidavit of desistance. More,
the affidavit is suspect considering that while it was dated 'April
1992,' it was only submitted sometime in August 1992, four (4)
months after the Information was filed before the court a quo on 6
April 1992, perhaps dated as such to coincide with the actual filing of
the case." 26

In People vs. Miranda, 27 applying the pertinent provisions of Article

344 of the Revised Penal Code which, in full, states -
"Art. 344. Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape, and acts of lasciviousness. The crimes of
adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse.
"The offended party cannot institute criminal prosecution without
including both the guilty parties, if they are both alive, nor, in any
case, if he shall have consented or pardoned the offenders.
"The offenses of seduction, abduction, rape or acts of lasciviousness,
shall not be prosecuted except upon a complaint filed by the offended
party or her parents, grandparents, or guardian, nor, in any case, if
 the offender has been expressly pardoned by the above named
persons, as the case may be.
"In cases of seduction, abduction, acts of lasciviousness and rape,
the marriage of the offender with the offended party shall extinguish
the criminal action or remit the penalty already imposed upon him.
The provisions of this paragraph shall also be applicable to the co-
principals, accomplices and accessories after the fact of the above-
mentioned crimes."

the Court said:

"Paragraph 3 of the legal provision above quoted prohibits a
prosecution for seduction, abduction, rape, or acts of lasciviousness,
except upon a complaint made by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been
expressly pardoned by the above-named persons, as the case may be.
It does not prohibit the continuance of a prosecution in the offended
party pardons the offender after the cause has been instituted, nor
does it order the dismissal of said cause. The only act that according
to article 344 extinguishes the penal action and the penalty that may
have been imposed is the marriage between the offender and the
offended party." 28

In People vs. Infante, 29 decided just a little over a month

before Miranda, the Court similarly held:
"In this court, after the case had been submitted, a motion to dismiss
was filed on behalf of the appellant predicated on an affidavit
executed by Manuel Artigas, Jr., in which he pardoned his guilty
spouse for her infidelity. But this attempted pardon cannot prosper
for two reasons. The second paragraph of article 344 of the Revised
Penal Code which is in question reads: 'The offended party cannot
institute criminal prosecution without including both the guilty
parties, if they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.' This provision means that the
pardon afforded the offenders must come before the institution of the
criminal prosecution, and means, further, that both the offenders
must be pardoned by the offended party. To elucidate further, article
435 of the old Penal Code provided: 'The husband may at any time
remit the penalty imposed upon his wife. In such case the penalty
imposed upon the wife's paramour shall also be deemed to be
remitted.' These provisions of the old Penal Code became inoperative
after the passage of Act No. 1773, section 2, which had the effect of
repealing the same. The Revised Penal Code thereafter expressly
repealed the old Penal Code, and in so doing did not have the effect
of reviving any of its provisions which were not in force. But with the
incorporation of the second paragraph of article 344, the pardon
given by the offended party again constitutes a bar to the
prosecution for adultery. Once more, however, it must be emphasized
that this pardon must come before the institution of the criminal
prosecution and must be for both offenders to be effective —
circumstances which do not concur in this case." 30

The decisions speak well for themselves, and the Court need not
say more than what it has heretofore already held.
Relative to the prayer for the disqualification of Judge Savellano
from further hearing the case, the Court is convinced that Judge
Savellano should, given the circumstances, be best excused from the
case. Possible animosity between the personalities here involved may
not all be that unlikely. The pronouncement of this Court in the old case
 of Luque vs. Kayanan 31 could again be said: All suitors are entitled to
nothing short of the cold neutrality of an independent, wholly-free
disinterested and unbiased tribunal. Second only to the duty of rendering
a just decision is the duty of doing it in a manner that will not arouse any
suspicion as to the fairness and integrity of the Judge. 32 It is not enough
that a court is impartial, it must also be perceived as impartial.
The Court cannot end this ponencia without a simple reminder on
the use of proper language before the courts. While the lawyer in
promoting the cause of his client or defending his rights might do so with
fervor, simple courtesy demands that it be done within the bounds of
propriety and decency. The use of intemperate language and unkind
ascriptions hardly can be justified nor can have a place in the dignity of
judicial forum. Civility among members of the legal profession is a
treasured tradition that must at no time be lost to it.
Finally, it may be opportune to say, once again, that prosecutors are
expected not merely to discharge their duties with the highest degree of
excellence, professionalism and skill but also to act each time with
utmost devotion and dedication to duty. 33 The Court is hopeful that the
zeal which has been exhibited many times in the past, although
regrettably a disappointment on few occasions, will not be wanting in
the proceedings yet to follow.
WHEREFORE, conformably with all the foregoing, the Court hereby
RULES that —
(a) The submission of the "Affidavit of Desistance," executed by
Juvie-Lyn Y. Punongbayan on 25 June 1997, having been
filed AFTER the institution of Criminal Case No. 97-159935,
DOES NOT WARRANT THE DISMISSAL of said criminal
case;
(b) For FAILURE OF DUE PROCESS, the assailed judgment, dated
12 December 1997, convicting petitioners is declared NULL
AND VOID and thereby SET ASIDE; accordingly, the case is
REMANDED to the trial court for further proceedings; and
(c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch
53 of the Regional Trial Court of Manila, is ENJOINED from
further hearing Criminal Case No. 97-159935; instead, the
case shall immediately be scheduled for raffle among the
other branches of that court for proper disposition .
No special pronouncement on costs.
SO ORDERED.
Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ ., concur.
Narvasa, C .J ., took no part: related to one of counsel.
(Alonte v. Savellano, Jr., G.R. Nos. 131652 & 131728, [March 9, 1998], 350
|||

PHIL 700-770)
 EN BANC

[G.R. No. 104961. October 7, 1994.]

CONGRESSMAN FRANCISCO B. ANIAG,

JR., petitioner, vs. COMMISSION ON ELECTIONS and
DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

DECISION

BELLOSILLO, J :p

PETITIONER assails in this petition (for declaratory relief,

certiorari and prohibition) the following resolutions of the
Commission on Elections: Resolution No. 2327 dated 26 December
1991 for being unconstitutional, and Resolution No. 92-0829 dated 6
April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want
of legal and factual bases.
cdrep

The factual backdrop: In preparation for the synchronized

national and local elections scheduled on 11 May 1992, the
Commission on Elections (COMELEC) issued on 11 December
1991 Resolution No. 2323 otherwise referred to as the "Gun Ban,"
promulgating rules and regulations on bearing, carrying and
transporting of firearms or other deadly weapons, on security
personnel or bodyguards, on bearing arms by members of security
agencies or police organizations, and organization or maintenance of
reaction forces during the election period. 1 Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for
the summary disqualification of candidates engaged in gunrunning,
using and transporting of firearms, organizing special strike forces,
and establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P.
Taccad, Sergeant-at-Arms, House of Representatives, wrote
petitioner who was then Congressman of the 1st District of Bulacan
requesting the return of the two (2) firearms 3 issued to him by the
House of Representatives. Upon being advised of the request on 13
January 1992 by his staff, petitioner immediately instructed his
driver, Ernesto Arellano, to pick up the firearms from petitioner's
house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same
day, the Philippine National Police (PNP) headed by Senior
Superintendent Danilo Cordero set up a checkpoint outside the
Batasan Complex some twenty (20) meters away from its entrance.
About thirty minutes later, the policemen manning the outpost
flagged down the car driven by Arellano as it approached the
checkpoint. They searched the car and found the firearms neatly
packed in their gun cases and placed in a bag in the trunk of the car.
Arellano was then apprehended and detained. He explained that he
was ordered by petitioner to get the firearms from the house and
return them to Sergeant-at Arms Taccad of the House of
Representatives.
Thereafter, the police referred Arellano's case to the Office of
the City Prosecutor for inquest. The referral did not include petitioner
as among those charged with an election offense. On 15 January
1992, the City Prosecutor ordered the release of Arellano after
finding the latter's sworn explanation meritorious. 4
On 28 January 1992, the City Prosecutor invited petitioner to
shed light on the circumstances mentioned in Arellano's sworn
explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the City
Prosecutor urging him to exonerate Arellano. He explained that
Arellano did not violate the firearms ban as he in fact was complying
with it when apprehended by returning the firearms to Congress;
and, that he was petitioner's driver, not a security officer nor a
bodyguard. 5
On 6 March 1992, the Office of the City Prosecutor issued a
resolution which, among other matters, recommended that the case
against Arellano be dismissed and that the "unofficial" charge
against petitioner be also dismissed. 6
Nevertheless, on 6 April 1992, upon recommendation of its Law
Department, COMELEC issued Resolution No. 92-0829 directing the
filing of information against petitioner and Arellano for violation
of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus
Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner
to show cause why he should not be disqualified from running for an
elective position, pursuant to COMELEC Resolution No. 2327, in
relation to Secs. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c),
of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to
hold in abeyance the administrative proceedings as well as the filing
of the information in court. 9 On 23 April 1992, the COMELEC denied
petitioner's motion for reconsideration. 10 Hence, this recourse.
Petitioner questions the constitutionality of Resolution No.
2327. He argues that the rules and regulations of an administrative
body must respect the limits defined by law; that the Omnibus
Election Code provides for the disqualification of any
person/candidate from running for or holding a public office, i.e., any
person who has either been declared by competent authority as
insane or incompetent or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has
been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude; that gunrunning, using or
transporting firearms or similar weapons and other acts mentioned
in the resolution are not within the letter or spirit of the provisions of
the Code; that the resolution did away with the requirement of final
conviction before the commission of certain offenses; that instead, it
created a presumption of guilt as a candidate may be disqualified
from office in situations (a) where the criminal charge is still
pending, (b) where there is no pending criminal case, and (c) where
the accused has already been acquitted, all contrary to the requisite
quantum of proof for one to be disqualified from running or holding
public office under the Omnibus Election Code, i.e., proof beyond
reasonable doubt. As a result, petitioner concludes, Resolution No.
2327 violates the fundamental law thus rendering it fatally defective.
But the issue on the disqualification of petitioner from running
in the 11 May 1992 synchronized elections was rendered moot when
he lost his bid for a seat in Congress in the elections that ensued.
Consequently, it is now futile to discuss the implications of the
charge against him on his qualification to run for public office.
LibLex

However, there still remains an important question to be

resolved, i.e., whether he can be validly prosecuted for instructing
his driver to return to the Sergeant-at-Arms of the House of
Representatives the two firearms issued to him on the basis of the
evidence gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the
PNP conducted the search. According to him, without a warrant and
without informing the driver of his fundamental rights the policemen
searched his car. The firearms were not tucked in the waist nor
within the immediate reach of Arellano but were neatly packed in
their gun cases and wrapped in a bag kept in the trunk of the car.
Thus, the search of his car that yielded the evidence for the
prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III,
of the Constitution. 11
Petitioner further maintains that he was neither impleaded as
party respondent in the preliminary investigation before the Office of
the City Prosecutor nor included in the charge sheet. Consequently,
making him a respondent in the criminal information would violate
his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A.
7166, which prohibits any candidate for public office during the
election period from employing or availing himself or engaging the
services of security personnel or bodyguards since, admittedly,
Arellano was not a security officer or bodyguard but a civilian
employee assigned to him as driver by the House of Representatives.
Specifically, petitioner further argues, Arellano was instructed to
return to Congress, as he did, the firearms in compliance with the
directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no
law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its own comment
on the petition 13 upon manifestation of the Solicitor General that it
could not take the position of COMELEC and prayed instead to be
excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of
Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which
provides that "the principals, accomplices and accessories, as
defined in the Revised Penal Code, shall be criminally liable for
election offenses." It points out that it was upon petitioner's
instruction that Arellano brought the firearms in question outside
petitioner's residence, submitting that his right to be heard was not
violated as he was invited by the City Prosecutor to explain the
circumstances regarding Arellano's possession of the firearms.
Petitioner also filed a sworn written explanation about the incident.
Finally, COMELEC claims that violation of the "Gun Ban" is mala
prohibita, hence, the intention of the offender is immaterial. 15
Be that as it may, we find no need to delve into the alleged
constitutional infirmity of Resolution No. 2327 since this petition may
be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles and
the seizure of evidence in plain view, 17 as well as the search
conducted at police or military checkpoints which we declared are
not illegal per se, and stressed that the warrantless search is not
violative of the Constitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search. 18

Petitioner contends that the guns were not tucked in Arellano's

waist nor placed within his reach, and that they were neatly packed
in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do not
show that the manner by which the package was bundled led the
PNP to suspect that it contained firearms. There was not mention
either of any report regarding any nervous, suspicious or unnatural
reaction from Arellano when the car was stopped and searched.
Given these circumstances and relying on its visual observation, the
PNP could not thoroughly search the car lawfully as well as the
package without violating the constitutional injunction.
An extensive search without warrant could only be resorted to
if the officers conducting the search had reasonable or probable
cause to believe before the search that either the motorist was a law
offender or that they would find the instrumentality or evidence
pertaining to the commission of a crime in the vehicle to be
searched. 19 The existence of probable cause justifying the
warrantless search is determined by the facts of each case. 20 Thus,
we upheld the validity of the warrantless search in situations where
the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and
attempted to flee. 21
We also recognize the stop-and-search without warrant
conducted by police officers on the basis of prior confidential
information which were reasonably corroborated by other attendant
matters, e.g., where a confidential report that a sizeable volume of
marijuana would be transported along the route where the search
was conducted and appellants were caught in flagrante delicto
transporting drugs at the time of their arrest; 22 where apart from the
intelligence information, there were reports by an undercover "deep
penetration" agent that appellants were bringing prohibited drugs
into the country; 23 where the information that a Caucasian coming
from Sagada bringing prohibited drugs was strengthened by the
conspicuous bulge in accused's waistline and his suspicious failure
to produce his passport and other identification papers; 24 where the
physical appearance of the accused fitted the description given in
the confidential information about a woman transporting
marijuana; 25where the accused carrying a bulging black leather bag
were suspiciously quiet and nervous when queried about its
contents; 26or where the identity of the drug courier was already
established by police authorities who received confidential
information about the probable arrival of accused on board one of
the vessels arriving in Dumaguete City. 27
In the case at bench, we find that the checkpoint was set up
twenty (20) meters from the entrance to the Batasan Complex to
enforce Resolution No. 2327. There was no evidence to show that the
policemen were impelled to do so because of a confidential report
leading them to reasonably believe that certain motorists matching
the description furnished by their informant were engaged in
gunrunning, transporting firearms or in organizing special strike
forces. Nor, as adverted to earlier, was there any indication from the
package or behavior of Arellano that could have triggered the
suspicion of the policemen. Absent such justifying circumstances
specifically pointing to the culpability of petitioner and Arellano, the
search could not be valid. The action then of the policemen
unreasonably intruded into petitioner's privacy and the security of
his property, in violation of Sec. 2, Art. III, of the Constitution.
Consequently, the firearms obtained in violation of petitioner's right
against warrantless search cannot be admitted for any purpose in
any proceeding.
It may be argued that the seeming acquiescence of Arellano to
the search constitutes an implied waiver of petitioner's right to
question the reasonableness of the search of the vehicle and the
seizure of the firearms.
While Resolution No. 2327 authorized the setting up of
checkpoints, it however stressed that "guidelines shall be made to
ensure that no infringement of civil and political rights results from
the implementation of this authority," and that "the places and
manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security
Personnel created under Sec. 5, Resolution No. 2323." 28 The facts
show that PNP installed the checkpoint at about five o'clock in the
afternoon of 13 January 1992. The search was made soon thereafter,
or thirty minutes later. It was not shown that news of impending
checkpoints without necessarily giving their locations, and the
reason for the same have been announced in the media to forewarn
the citizens. Nor did the informal checkpoint that afternoon carry
signs informing the public of the purpose of its operation. As a result,
motorists passing that place did not have any inkling whatsoever
about the reason behind the instant exercise. With the authorities in
control to stop and search passing vehicles, the motorists did not
have any choice but to submit to the PNP's scrutiny. Otherwise, any
attempt to turnabout albeit innocent would raise suspicion and
provide probable cause for the police to arrest the motorist and to
conduct an extensive search of his vehicle.
In the case of petitioner, only his driver was at the car at that
time it was stopped for inspection. As conceded by COMELEC, driver
Arellano did not know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the operation, 29 driver
Arellano being alone and a mere employee of petitioner could not
have marshalled the strength and the courage to protest against the
extensive search conducted in the vehicle. In such scenario, the
"implied acquiescence," if there was any, could not be more than a
mere passive conformity on Arellano's part to the search, and
"consent" given under intimidating or coercive circumstances is no
consent within the purview of the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of the Constitution.
The facts show that petitioner was not among those charged by the
PNP with violation of the Omnibus Election Code. Nor was he
subjected by the City Prosecutor to a preliminary investigation for
such offense. The non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the preliminary investigation
is violative of due process which requires that the procedure
established by law should be obeyed. 30
COMELEC argues that petitioner was given the chance to be
heard because he was invited to enlighten the City Prosecutor
regarding the circumstances leading to the arrest of his driver, and
that petitioner in fact submitted a sworn letter of explanation
regarding the incident. This does not satisfy the requirement of due
process the essence of which is the reasonable opportunity to be
heard and to submit any evidence one may have in support of his
defense. 31 Due process guarantees the observance of both
substantive and procedural rights, whatever the source of such
rights, be it the Constitution itself or only a statute or a rule of
court. 32 In Go v. Court of Appeals, 33 we held that —
While the right to preliminary investigation is statutory
rather than constitutional in its fundamental, since it has in fact
been established by statute, it is a component part of due
process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or
some other penalty is not a mere formal or technical right; it is a
substantive right . . . . [T]he right to an opportunity to avoid a
process painful to anyone save, perhaps, to hardened criminals is
a valuable right. To deny petitioner's claim to a preliminary
investigation would be to deprive him of the full measure of his
right to due process.
Apparently, petitioner was merely invited during the preliminary
investigation of Arellano to corroborate the latter's explanation.
Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the
incident was only intended to exculpate Arellano, not petitioner
himself. Hence, it cannot be seriously contended that petitioner was
fully given the opportunity to meet the accusation against him as he
was not apprised that he was himself a respondent when he
appeared before the City Prosecutor. cdll

Finally, it must be pointed out too that petitioner's filing of a

motion for reconsideration with COMELEC cannot be considered as a
waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous insistence
on his right. Petitioner's protestation started as soon as he learned
 of his inclusion in the charge, and did not ease up even after
COMELEC's denial of his motion for reconsideration. This is
understandably so since the prohibition against carrying firearms
bears the penalty of imprisonment of not less than one (1) year nor
more than six (6) years without probation and with disqualification
from holding public office, and deprivation of the right to suffrage.
Against such strong stance, petitioner clearly did not waive his right
to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless
search conducted by the Philippine National Police on 13 January
1992 is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in an proceeding
against petitioner. Consequently, COMELEC Resolution No. 92-0829
dated 6 April 1992 being violative of the Constitution is SET ASIDE.
The temporary restraining order we issued on 5 May 1992 is
made permanent.

SO ORDERED.
Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza,
JJ., concur.
Feliciano, Padilla and Bidin, JJ., are on leave.
(Aniag, Jr. v. Commission on Elections, G.R. No. 104961, [October 7, 1994],
|||

307 PHIL 437-461)

 EN BANC

[G.R. No. 167011. April 30, 2008.]

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R.

ROMUALDEZ, petitioners, vs. COMMISSION ON ELECTIONS and
DENNIS GARAY, respondents.

DECISION

CHICO-NAZARIO, J : p

This treats of the Petition for Review on Certiorari with a prayer for
the issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction filed by petitioners Spouses Carlos S. Romualdez and Erlinda
R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 2004 1 and 27 January 2005 2 of the Commission on Elections
(COMELEC) in E.O. Case No. 2000-36. In the Resolution of 11 June 2004,
the COMELEC En Banc directed the Law Department to file the
appropriate Information with the proper court against petitioners Carlos
S. Romualdez and Erlinda Romualdez for violation of Section 10 (g) and
(j) 3 in relation to Section 45 (j) 4 of Republic Act No. 8189, otherwise
known as The Voter's Registration Act of 1996. 5 Petitioners' Motion for
Reconsideration thereon was denied.
The factual antecedents leading to the instant Petition are
presented hereunder:
On 12 July 2000, private respondent Dennis Garay, along with
Angelino Apostol 6 filed a Complaint-Affidavit 7 with the COMELEC thru
the Office of the Election Officer in Burauen, Leyte, charging petitioners
with violation of Section 261 (y) (2) 8 and Section 261 (y) (5) 9 of the
Omnibus Election Code, similarly referred to as Batas Pambansa Blg.
881; and Section 12 10 of Republic Act No. 8189.
Private respondent deposed, inter alia, that: petitioners are of legal
ages and residents of 113 Mariposa Loop, Mariposa Street, Bagong
Lipunan ng Crame, Quezon City; on 9 May 2000 and 11 May 2000,
petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte, as evidenced by Voter Registration Record Nos.
42454095 and 07902952, respectively; in their sworn applications,
petitioners made false and untruthful representations in violation of
Section 10 11 of Republic Act No. 8189, by indicating therein that they are
residents of 935 San Jose Street, Burauen, Leyte, when in truth and in
fact, they were and still are residents of 113 Mariposa Loop, Mariposa
Street, Bagong Lipunan ng Crame, Quezon City, and registered voters of
Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct
No. 4419-A, as evidenced by Voter Registration Record Nos. 26195824
and 26195823; and that petitioners, knowing fully well said truth,
intentionally and willfully, did not fill the blank spaces in said
applications corresponding to the length of time which they have resided
in Burauen, Leyte. In fine, private respondent charged petitioners, to wit:
 Respondent-spouses, Carlos Sison Romualdez and Erlinda
Reyes Romualdez committed and consummated election offenses in
violation of our election laws, specifically, Sec. 261, paragraph (y),
subparagraph (2), for knowingly making any false or untruthful
statements relative to any data or information required in the
application for registration, and of Sec. 261, paragraph (y),
subparagraph (5), committed by any person who, being a registered
voter, registers anew without filing an application for cancellation of
his previous registration, both of the Omnibus Election Code (BP
Blg. 881), and of Sec. 12, RA 8189 (Voter Registration Act) for failure
to apply for transfer of registration records due to change of
residence to another city or municipality."12
The Complaint-Affidavit contained a prayer that a preliminary
investigation be conducted by the COMELEC, and if the evidence so
warrants, the corresponding Information against petitioners be filed
before the Regional Trial Court (RTC) for the prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to
Dismiss 13 dated 2 April 2001. They contended therein that they did not
make any false or untruthful statements in their application for
registration. They avowed that they intended to reside in Burauen, Leyte,
since the year 1989. On 9 May 2000, they took actual residence in
Burauen, Leyte, by leasing for five (5) years, the house of Juanito and Fe
Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date,
the Barangay District III Council of Burauen passed a Resolution of
Welcome, expressing therein its gratitude and appreciation to petitioner
Carlos S. Romualdez for choosing the Barangay as his official
residence. 14
On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal,
COMELEC Investigating Officer, issued a Resolution, recommending to
the COMELEC Law Department (Investigation and Prosecution Division),
the filing of the appropriate Information against petitioners, disposing,
thus:
PREMISES CONSIDERED, the Law Department (Investigation
and Prosecution Division), RECOMMENDS to file the necessary
information against Carlos Sison Romualdez before the proper
Regional Trial Court for violation of Section 10 (g) and (j) in relation
to Section 45 (j) of Republic Act 8189 and to authorize the Director
IV of the Law Department to designate a Comelec Prosecutor to
handle the prosecution of the case with the duty to submit periodic
report after every hearing of the case. 15
On 11 June 2004, the COMELEC En Banc found no reason to depart
from the recommendatory Resolution of 28 November 2003, and
ordered, viz.:
WHEREFORE, premises considered, the Law Department is
hereby directed to file the appropriate information with the proper
court against respondents CARLOS S. ROMUALDEZ AND ERLINDA
ROMUALDEZ for violation of Section 10 (g) and (j) in relation to
Section 45 (j) of the Republic Act No. 8189. 16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to
disturb the assailed En Banc Resolution of 11 June 2004, 17rationalizing,
thus:
 However, perusal of the records reveal (sic) that the arguments and
issues raised in the Motion for Reconsideration are merely a rehash
of the arguments advanced by the Respondents in [their]
Memorandum received by the Law Department on 17 April 2001, the
same [w]as already considered by the Investigating Officer and was
discussed in her recommendation which eventually was made as the
basis for the En Banc's resolution.
As aptly observed by the Investigating Officer, the filing of
request for the cancellation and transfer of Voting Registration
Record does not automatically cancel the registration records. The
fact remains that at the time of application for registration as new
voter of the herein Respondents on May 9 and 11, 2001 in the Office
of Election Officer of Burauen, Leyte their registration in Barangay
4419-A, Barangay Bagong Lipunan ng Crame Quezon City was still
valid and subsisting. 18
On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department
of the COMELEC filed with the RTC, Burauen, Leyte, separate
Informations against petitioner Carlos S. Romualdez 19 for violation of
Section 10 (g), in relation to Section 45 (j) of Republic Act No. 8189, and
against petitioner Erlinda R. Romualdez 20 for violation of Section 10 (g),
in relation to Section 45 (j) of Republic Act No. 8189, subsequently
docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-
4183, respectively. Moreover, separate Informations for violation of
Section 10 (j), in relation to Section 45 (j) of Republic Act No. 8189 were
filed against petitioners.21
Hence, petitioners come to us via the instant Petition, submitting
the following arguments:
I
RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS
JURISDICTION; and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT
PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF FACTS
AND FAILED TO CONSIDER CERTAIN RELEVANT FACTS THAT WOULD
JUSTIFY A DIFFERENT CONCLUSION. 22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for
Issuance of Writ of Preliminary Injunction and to Cite for Indirect
Contempt, 23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against
petitioner Carlos S. Romualdez for violation of Section 10 (j), in relation
to Section 45 (j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-
9184; and for violation of Section 10 (g), in relation to Section 45 (j)
of Republic Act No. 8189, in Criminal Case No. BN-06-03-9185. Similarly,
the Motion alleged that the COMELEC filed with the RTC, two separate
Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged
against petitioner Carlos S. Romualdez, and thereafter, docketed as
Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.
On 20 June 2006, this Court issued a Resolution 24 denying for lack
of merit petitioners' Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt.
 We shall now resolve, in seriatim, the arguments raised by
petitioners.
Petitioners contend that the election offenses for which they are
charged by private respondent are entirely different from those which
they stand to be accused of before the RTC by the COMELEC. According
to petitioners, private respondent's complaint charged them for allegedly
violating, to wit: 1) Section 261 (y) (2) and Section 261 (y) (5) of the
Omnibus Election Code, and 2) Section 12 of the Voter's Registration Act;
however, the COMELEC En Banc directed in the assailed Resolutions,
that they be charged for violations of Section 10 (g) and (j), in relation to
Section 45 (j) of the Voter's Registration Act. Essentially, petitioners are
of the view that they were not accorded due process of law. Specifically,
their right to refute or submit documentary evidence against the new
charges which COMELEC ordered to be filed against them. Moreover,
petitioners insist that Section 45 (j) of the Voter's Registration Act is
vague as it does not refer to a definite provision of the law, the violation
of which would constitute an election offense; hence, it runs contrary to
Section 14 (1) 25 and Section 14 (2), 26 Article III of the 1987 Constitution.
We are not persuaded.
First. The Complaint-Affidavit filed by private respondent with the
COMELEC is couched in a language which embraces the allegations
necessary to support the charge for violation of Section 10 (g) and (j), in
relation to Section 45 (j) of Republic Act No. 8189.
A reading of the relevant laws is in order, thus:
Section 10 (g) and Section 10 (j) of Republic Act No. 8189, provide as
follows:
SEC. 10. Registration of Voters. — A qualified voter shall be registered
in the permanent list of voters in a precinct of the city or municipality
wherein he resides to be able to vote in any election. To register as a
voter, he shall personally accomplish an application form for
registration as prescribed by the Commission in three (3) copies
before the Election Officer on any date during office hours after
having acquired the qualifications of a voter.
The application shall contain the following data:
xxx xxx xxx
(g) Periods of residence in the Philippines and in the place of
registration;
xxx xxx xxx
(j) A statement that the application is not a registered voter of any
precinct;
The application for registration shall contain three (3) specimen
signatures of the applicant, clear and legible rolled prints of his left
and right thumbprints, with four identification size copies of his
latest photograph, attached thereto, to be taken at the expense of
the Commission.
Before the applicant accomplishes his application for registration,
the Election Officer shall inform him of the qualifications and
disqualifications prescribed by law for a voter, and thereafter, see to
it that the accomplished application contains all the data therein
required and that the applicant's specimen signatures, fingerprints,
 and photographs are properly affixed in all copies of the voter's
application.
Moreover, Section 45 (j) of the same Act, recites, thus:
SEC. 45. Election Offense. — The following shall be considered
election offenses under this Act:
xxx xxx xxx
(j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was
filed with the Law Department of the COMELEC, support the charge
directed by the COMELEC En Banc to be filed against petitioners with the
RTC. Even a mere perusal of the Complaint-Affidavit would readily show
that Section 10 of Republic Act No. 8189 was specifically mentioned
therein. On the matter of the acts covered by Section 10 (g) and (j), the
Complaint-Affidavit, spells out the following allegations, to wit:
5. Respondent-spouses made false and untruthful representations in
their applications (Annexes "B" and "C") in violation of the
requirements of Section 10, RA 8189 (The Voter's Registration
Act):
5.1 Respondent-spouses, in their sworn applications (Annexes
"B" and "C", claimed to be residents of 935 San Jose
[S]treet, Burauen, Leyte, when in truth and in fact, they
were and still are residents of 113 Mariposa Loop,
Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon City
and registered voters of Barangay Bagong Lipunan ng
Crame, District IV, Quezon City, Precinct No. 4419-A, a
copy of the Certification issued by Hon. Emmanuel V.
Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part
hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth,
intentionally and willfully, did not fill the blank spaces in
their applications (Annexes "B" and "C") corresponding to
the length of time they have resided in Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were and
still are residents and registered voters of Quezon City, as
evidenced by Voter Registration Record Nos. 26195824 and
26195823, respectively; photocopies of which are hereto
attached as Annexes "E" and "F"[.] Likewise, attached is a
"Certification" (Annex "G") of Ms. Evelyn B. Bautista, Officer-in-
Charge of the Office of the Election Officer, Fourth District,
Quezon City, dated May 31, 2000, together with a certified copy
of the computer print-out of the list of voters of Precinct No.
4419-A (Annex "G-1") containing the names of voters Carlos
Romualdez and Erlinda Reyes Romualdez. The Certification
reads as follows:
"THIS IS TO CERTIFY that as per office record MR.
CARLOS ROMUALDEZ and MS. ERLINDA REYES
ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct
Number 4419A with voters affidavit serial nos. 26195824
and 26195823, respectively.
This certification is issued for whatever legal
purpose it may serve."
 7. Respondent-spouses, registered as new voters of the Municipality
of Burauen, Leyte, [in spite of] the fact that they were and still
are, registered voters of Quezon City as early as June 22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register once.
If a person registers anew as a voter in spite of a subsisting
registration, the new application for registration will be
disapproved. The registrant is also liable not only for an
election offense of double registration, but also for
another election offense of knowingly making any false or
untruthful statement relative to any data or information
required in the application for registration.
In fact, when a person applies for registration as a voter, he or
she fills up a Voter Registration Record form in his or her
own handwriting, which contains a Certification which
reads:
"I do solemnly swear that the above statements regarding my
person are true and correct; that I possess all the
qualifications and none of the disqualifications of a voter;
that the thumbprints, specimen signatures and
photographs appearing herein are mine; and that I am not
registered as a voter in any other precinct." 27
Petitioners cannot be said to have been denied due process on the
claim that the election offenses charged against them by private
respondent are entirely different from those for which they stand to be
accused of before the RTC, as charged by the COMELEC. In the first
place, there appears to be no incongruity between the charges as
contained in the Complaint-Affidavit and the Informations filed before
the RTC, notwithstanding the denomination by private respondent of the
alleged violations to be covered by Section 261 (y) (2) and Section 261
(y) (5) of the Omnibus Election Code and Section 12 of Republic Act No.
8189. Evidently, the Informations directed to be filed by the COMELEC
against petitioners, and which were, in fact, filed with the RTC, were
based on the same set of facts as originally alleged in the private
respondent's Complaint-Affidavit.
Petitioners buttress their claim of lack of due process by relying on
the case of Lacson v. Executive Secretary . 28 Citing Lacson,petitioners
argue that the real nature of the criminal charge is determined by the
actual recital of facts in the Complaint or Information; and that the
object of such written accusations was to furnish the accused with such
a description of the charge against him, as will enable him to make his
defense. Let it be said that, in Lacson, this court resolved the issue of
whether under the allegations in the subject Informations therein, it is
the Sandiganbayan or the Regional Trial Court which has jurisdiction over
the multiple murder case against therein petitioner and intervenors.
In Lacson, we underscored the elementary rule that the jurisdiction of a
court is determined by the allegations in the Complaint or Information,
and not by the evidence presented by the parties at the trial. 29 Indeed,
in Lacson, we articulated that the real nature of the criminal charge is
determined not from the caption or preamble of the Information nor from
the specification of the provision of law alleged to have been violated,
they being conclusions of law, but by the actual recital of facts in the
Complaint or Information. 30
 Petitioners' reliance on Lacson, however, does not support their
claim of lack of due process because, as we have said, the charges
contained in private respondent's Complaint-Affidavit and the charges as
directed by the COMELEC to be filed are based on the same set of facts.
In fact, the nature of the criminal charges in private respondent's
Complaint-Affidavit and that of the charges contained in the Informations
filed with the RTC, pursuant to the COMELEC Resolution En Banc are the
same, such that, petitioners cannot claim that they were not able to
refute or submit documentary evidence against the charges that the
COMELEC filed with the RTC. Petitioners were afforded due process
because they were granted the opportunity to refute the allegations in
private respondent's Complaint-Affidavit. On 2 April 2001, in opposition
to the Complaint-Affidavit, petitioners filed a Joint Counter-Affidavit with
Motion to Dismiss with the Law Department of the COMELEC. They
similarly filed a Memorandum before the said body. Finding that due
process was not dispensed with under the circumstances in the case at
bar, we agree with the stance of the Office of the Solicitor General that
petitioners were reasonably apprised of the nature and description of the
charges against them. It likewise bears stressing that preliminary
investigations were conducted whereby petitioners were informed of the
complaint and of the evidence submitted against them. They were given
the opportunity to adduce controverting evidence for their defense. In all
these stages, petitioners actively participated.
The instant case calls to our minds Orquinaza v. People, 31 wherein
the concerned police officer therein designated the offense charged as
sexual harassment; but, the prosecutor found that there was no
transgression of the anti-sexual harassment law, and instead, filed an
Information charging therein petitioner with acts of lasciviousness. On a
claim that there was deprivation of due process, therein petitioner
argued that the Information for acts of lasciviousness was void as the
preliminary investigation conducted was for sexual harassment. The
court held that the designation by the police officer of the offense is not
conclusive as it is within the competence of the prosecutor to assess
the evidence submitted and determine therefrom the appropriate offense
to be charged.
Accordingly, the court pronounced that the complaint contained all
the allegations to support the charge of acts of lasciviousness under the
Revised Penal Code; hence, the conduct of another preliminary
investigation for the offense of acts of lasciviousness would be a futile
exercise because the complainant would only be presenting the same
facts and evidence which have already been studied by the
prosecutor. 32 The court frowns upon such superfluity which only serves
to delay the prosecution and disposition of the criminal complaint. 33
Second. Petitioners would have this court declare Section 45 (j)
of Republic Act No. 8189 vague, on the ground that it contravenes the fair
notice requirement of the 1987 Constitution, in particular, Section 14 (1)
and Section 14 (2), Article III of thereof. Petitioners submit that Section
45 (j) of Republic Act No. 8189 makes no reference to a definite provision
of the law, the violation of which would constitute an election offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid if
men of common intelligence must necessarily guess at its meaning and
differ as to its application. 34 However, this Court has imposed certain
limitations by which a criminal statute, as in the challenged law at bar,
may be scrutinized. This Court has declared that facial invalidation 35 or
an "on-its-face" invalidation of criminal statutes is not appropriate. 36 We
have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the
established rule is that 'one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional.'
As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant.'" (underscoring supplied)
"To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity." While mentioned in
passing in some cases, the void-for-vagueness concept has yet to
find direct application in our jurisdiction. In Yu Cong Eng v.
Trinidad, the Bookkeeping Act was found unconstitutional because it
violated the equal protection clause, not because it was
vague. Adiong v. Comelec decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec held that a
portion of RA 6735 was unconstitutional because of undue delegation
of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result
in a mass acquittal of parties whose cases may not have even
reached the courts. Such invalidation would constitute a departure
from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no
factual concreteness. In Younger v. Harris, this evil was aptly pointed
out by the U.S. Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of
statutes, described as a "manifestly strong medicine" to be employed
"sparingly and only as a last resort." In determining the
constitutionality of a statute, therefore, its provisions that have
allegedly been violated must be examined in the light of the conduct
with which the defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of
the dissent which seek to bring to the fore the purported ambiguities of a
long list of provisions in Republic Act No. 8189 can be deemed as a facial
challenge. An appropriate "as applied" challenge in the instant Petition
should be limited only to Section 45 (j) in relation to Sections 10 (g) and
(j) of Republic Act No. 8189 — the provisions upon which petitioners are
charged. An expanded examination of the law covering provisions which
are alien to petitioners' case would be antagonistic to the rudiment that
for judicial review to be exercised, there must be an existing case or
controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the
proscription anent a facial challenge: 38
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion
are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma, it was held:
It remains a matter of no little difficulty to determine when a law may
properly be held void on its face and when such summary action is
inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from pure speech toward conduct and that
conduct even if expressive falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected
conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." Here, the incontrovertible
fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly
strong medicine", to be used "sparingly and only as a last resort",
and is "generally disfavored"; The reason for this is obvious.
Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court. A writer and scholar in Constitutional
Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on
its face", not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it
 more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling"; deterrent
effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad laws "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of
those third parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on
the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally
protected speech or expression.
xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may
be valid. Here, petitioners did not even attempt to show whether this
situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application." It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing
"on their faces" statutes in free speech cases. And like overbreadth,
it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications.
Be that as it may, the test in determining whether a criminal statute
is void for uncertainty is whether the language conveys a sufficiently
definite warning as to the proscribed conduct when measured by
common understanding and practice. 39 This Court has similarly stressed
that the vagueness doctrine merely requires a reasonable degree of
certainty for the statute to be upheld — not absolute precision or
mathematical exactitude. 40
As structured, Section 45 41 of Republic Act No. 8189 makes a
recital of election offenses under the same Act. Section 45 (j) is, without
doubt, crystal in its specification that a violation of any of the provisions
of Republic Act No. 8189 is an election offense. The language of Section
45 (j) is precise. The challenged provision renders itself to no other
interpretation. A reading of the challenged provision involves no
guesswork. We do not see herein an uncertainty that makes the same
vague.
Notably, herein petitioners do not cite a word in the challenged
provision, the import or meaning of which they do not understand. This is
in stark contrast to the case of Estrada v. Sandiganbayan 42 where
therein petitioner sought for statutory definition of particular words in
the challenged statute. Even then, the Court in Estrada rejected the
argument.
This Court reasoned:
 The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
them; much less do we have to define every word we use. Besides,
there is no positive constitutional or statutory command requiring
the legislature to define each and every word in an
enactment. Congress is not restricted in the form of expression of its
will, and its inability to so define the words employed in a statute will
not necessarily result in the vagueness or ambiguity of the law so
long as the legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics that
words of a statute will be interpreted in their natural, plain and
ordinary acceptation and signification, unless it is evident that the
legislature intended a technical or special legal meaning to those
words. The intention of the lawmakers who are, ordinarily, untrained
philologists and lexicographers to use statutory phraseology in such
a manner is always presumed.
Perforce, this Court has underlined that an act will not be held
invalid merely because it might have been more explicit in its wordings
or detailed in its provisions, especially where, because of the nature of
the act, it would be impossible to provide all the details in advance as in
all other statutes. 43
The evident intent of the legislature in including in the catena of
election offenses the violation of any of the provisions ofRepublic Act No.
8189, is to subsume as punishable, not only the commission of
proscribed acts, but also the omission of acts enjoined to be observed.
On this score, the declared policy of Republic Act No. 8189 is
illuminating. The law articulates the policy of the State to systematize
the present method of registration in order to establish a clean,
complete, permanent and updated list of voters. A reading of Section 45
(j) conjointly with the provisions upon which petitioners are
charged, i.e., Sections 10 (g) and (j) would reveal that the matters that
are required to be set forth under the aforesaid sections are crucial to
the achievement of a clean, complete, permanent and updated list of
voters. The factual information required by the law is sought not for mere
embellishment.
There is a definitive governmental purpose when the law requires
that such facts should be set forth in the application. The periods of
residence in the Philippines and in the place of registration delve into
the matter of residency, a requisite which a voter must satisfy to be
deemed a qualified voter and registered in the permanent list of voters in
a precinct of the city or municipality wherein he resides. Of even
rationality exists in the case of the requirement in Section 10 (j),
mandating that the applicant should state that he/she is not a registered
voter of any precinct. Multiple voting by so-called flying voters are
glaring anomalies which this country strives to defeat. The requirement
that such facts as required by Section 10 (g) and Section 10 (j) be stated
in the voter's application form for registration is directly relevant to the
right of suffrage, which the State has the right to regulate.
It is the opportune time to allude to the case of People v.
Gatchalian 44 where the therein assailed law contains a similar provision
as herein assailed before us. Republic Act No. 602 also penalizes any
person who willfully violates any of the provisions of the Act. The Court
dismissed the challenged, and declared the provision constitutional. The
Court in Gatchalian read the challenged provision, "any of the provisions
of this [A]ct" conjointly with Section 3 thereof which was the pertinent
portion of the law upon which therein accused was
prosecuted. Gatchalian considered the terms as all-embracing; hence,
the same must include what is enjoined in Section 3 thereof which
embodies the very fundamental purpose for which the law has been
adopted. This Court ruled that the law by legislative fiat intends to
punish not only those expressly declared unlawful but even those not so
declared but are clearly enjoined to be observed to carry out the
fundamental purpose of the law. 45 Gatchalian remains good law, and
stands unchallenged.
It also does not escape the mind of this Court that the phraseology
in Section 45 (j) is employed by Congress in a number of our
laws. 46 These provisions have not been declared unconstitutional.
Moreover, every statute has in its favor the presumption of
validity. 47 To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative. 48 We hold that petitioners failed to
overcome the heavy presumption in favor of the law. Its constitutionality
must be upheld in the absence of substantial grounds for overthrowing
the same.
A salient point. Courts will refrain from touching upon the issue of
constitutionality unless it is truly unavoidable and is the very lis mota. In
the case at bar, the lis mota is the alleged grave abuse of discretion of
the COMELEC in finding probable cause for the filing of criminal charges
against petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its
finding on a misapprehension of facts, and committed grave abuse of
discretion in directing the filing of Informations against them with the
RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC
finds statutory expression under Section 265 49 of Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code. 50 The task of the
COMELEC whenever any election offense charge is filed before it is to
conduct the preliminary investigation of the case, and make a
determination of probable cause. Under Section 8 (b), Rule 34 of the
COMELEC Rules of Procedure, the investigating officer makes a
determination of whether there is a reasonable ground to believe that a
crime has been committed. 51 In Baytan v. COMELEC, 52 this Court,
sufficiently elucidated on the matter of probable cause in the
prosecution of election offenses, viz.:
It is also well-settled that the finding of probable cause in the
prosecution of election offenses rests in the COMELEC's sound
discretion. The COMELEC exercises the constitutional authority to
investigate and, where appropriate, prosecute cases for violation of
election laws, including acts or omissions constituting election
frauds, offense and malpractices. Generally, the Court will not
interfere with such finding of the COMELEC absent a clear showing
of grave abuse of discretion. This principle emanates from the
COMELEC's exclusive power to conduct preliminary investigation of
 all election offenses punishable under the election laws and to
prosecute the same, except as may otherwise be provided by law. 53
It is succinct that courts will not substitute the finding of probable
cause by the COMELEC in the absence of grave abuse of discretion. The
abuse of discretion must be 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, or to act at all in contemplation of law as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility. 54
According to the COMELEC En Banc, the investigating officer, in the
case at bar, held that there was sufficient cause for the filing of criminal
charges against petitioners, and found no reason to depart therefrom.
Without question, on May 9 and 11 of 2001, petitioners applied for
registration as new voters with the Office of the Election Officer of
Burauen, Leyte, notwithstanding the existence of petitioners'
registration records as registered voters of Precinct No. 4419-A of
Barangay Bagong Lipunan ng Crame, District IV, Quezon City. The
directive by the COMELEC which affirmed the Resolution 55 of 28
November 2000 of Investigating Officer Atty. Tangaro-Casingal does not
appear to be wanting in factual basis, such that a reasonably prudent
man would conclude that there exists probable cause to hold petitioners
for trial. Thus, in the aforesaid Resolution, the Investigating Officer,
found:
A violation therefore of Section 10 of Republic Act No. 8189 is an
election offense.
In the instant case, when respondents Carlos Romualdez and Erlinda
Romualdez filed their respective applications for registration as new
voters with the Office of the Election Officer of Burauen, Leyte on
May 9 and 11, 2001, respectively, they stated under oath that they are
not registered voters in other precinct (VRR Nos. 42454095 and
07902941). However, contrary to their statements, records show they
are still registered voters of Precinct No. 4419-A, barangay Bagong
Lipunan ng Crame, District IV, Quezon City, as per VRR Nos. 26195825
and 26195823. In other words, respondents' registration records in
Quezon City is (sic) still in existence.
While it may be true that respondents had written the City Election
Officer of District IV, Quezon City for cancellation of their voter's
registration record as voter's (sic) therein, they cannot presume that
the same will be favorably acted upon. Besides, RA 8189 provides for
the procedure in cases of transfer of residence to another
city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or Municipality. —
Any registered voter who has transferred residence to another city or
municipality may apply with the Election Officer of his new residence
for the transfer of his registration records.
The application for transfer of registration shall be subject to the
requirements of notice and hearing and the approval of the Election
Registration Board, in accordance with this Act. Upon approval, of the
application for transfer, and after notice of such approval to the
Election Officer of their former residence of the voter, said Election
Officer shall transmit by registered mail the voter's registration
record to the Election Officer of the voter's new residence."
They cannot claim ignorance of the abovestated provision on the
procedure for transfer of registration records by reason of transferred
 new residence to another municipality. Based on the affidavit
executed by one Eufemia S. Cotoner, she alleged that the refusal of
the Assistant Election Officer Ms. Estrella Perez to accept the letter
of respondents was due to improper procedure because respondents
should have filed the required request for transfer with the Election
Officer of Burauen, Leyte. Despite this knowledge, however, they
proceeded to register as new voters of Burauen, Leyte,
notwithstanding the existence of their previous registrations in
Quezon City.
In their subsequent affidavit of Transfer of Voters Registration under
Section 12 of Republic Act 8189, respondents admitted thatthey
erroneously filed an application as a new voter (sic) with the office of
the Election Officer of Burauen, Leyte, by reason of an honest
mistake, which they now desire to correct. (underscoring ours).
Respondents lose sight of the fact that a statutory offense, such as
violation of election law, is mala prohibita. Proof of criminal intent is
not necessary. Good faith, ignorance or lack of malice is beside the
point. Commission of the act is sufficient. It is the act itself that is
punished.
xxx xxx xxx
In view of the foregoing, the Law Department respectfully
submits that there is probable cause to hold respondents Carlos
Romualdez and Erlinda Romualdez for trial in violation of Section
10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189.
There is no doubt that they applied for registration as new voters of
Burauen, Leyte consciously, freely and voluntarily. 56
We take occasion to reiterate that the Constitution grants to the
COMELEC the power to prosecute cases or violations of election laws.
Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and where
appropriate, prosecute cases or violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.
This power to prosecute necessarily involves the power to
determine who shall be prosecuted, and the corollary right to decide
whom not to prosecute. 57 Evidently, must this power to prosecute also
include the right to determine under which laws prosecution will be
pursued. The courts cannot dictate the prosecution nor usurp its
discretionary powers. As a rule, courts cannot interfere with the
prosecutor's discretion and control of the criminal prosecution. 58 Its
rationale cannot be doubted. For the business of a court of justice is to
be an impartial tribunal, and not to get involved with the success or
failure of the prosecution to prosecute. 59 Every now and then, the
prosecution may err in the selection of its strategies, but such errors are
not for neutral courts to rectify, any more than courts should correct the
blunders of the defense. 60
Fourth. In People v. Delgado, 61 this Court said that when the
COMELEC, through its duly authorized law officer, conducts the
preliminary investigation of an election offense and upon a prima
facie finding of a probable cause, files the Information in the proper
court, said court thereby acquires jurisdiction over the case.
Consequently, all the subsequent disposition of said case must be
subject to the approval of the court. The records show that Informations
charging petitioners with violation of Section 10 (g) and (j), in relation to
Section 45 (j) of Republic Act No. 8189 had been filed with the RTC. The
case must, thus, be allowed to take its due course.
It may be recalled that petitioners prayed for the issuance of a
Temporary Restraining Order or Writ of Preliminary Injunction before this
Court to restrain the COMELEC from executing its Resolutions of 11 June
2004 and 27 January 2005. In a Resolution dated 20 June 2006, this
Court En Banc denied for lack of merit petitioners' Motion Reiterating
Prayer for Issuance of Writ of Preliminary Injunction and to Cite for
Indirect Contempt. Logically, the normal course of trial is expected to
have continued in the proceedings a quo.
WHEREFORE, the Petition is DENIED. The assailed Resolutions,
dated 11 June 2004 and 27 January 2005 of the COMELEC En Banc are
AFFIRMED. Costs against petitioners.
SO ORDERED.
Puno, C.J., joins the dissent of J. Tinga.
Quisumbing, Ynares-Santiago, Azcuna, Velasco, Jr., Reyes,
Leonardo-de Castro and Brion, JJ., concur.
Austria-Martinez, Carpio-Morales and Nachura, JJ., join Justices
Tinga and Carpio in their dissenting opinions.
Corona, J., is on leave, (I certify that J. Corona voted in favor of the
majority opinion - RSP).
Carpio, J., see dissenting opinion.
Tinga, J., please see dissenting opinion.

Separate Opinions
TINGA, J., dissenting opinion:

This case presented itself with an alluring promise — the rare

opportunity to declare a penal provision unconstitutional and void for
vagueness, in the process obliterating the impression, spawned by
recent pronouncements of the Court based on an erroneous reading of
applicable American jurisprudence, that such a denouement would not
unfold in this jurisdiction. Quite lamentably, the majority prevented the
promise from blossoming to fruition, perpetuating instead a grievous
doctrinal error which is already the subject of strenuous criticism within
the legal academe. 1
A vague criminal statute at its core violates due process, as it
deprives fair notice and standards to all — the citizens, the law
enforcement officers, prosecutors and judges. The petition in this case
has allowed the Court to engage in as thorough inquiry as there ever has
been on the constitutional right to due process, to infuse vitality and
sophistication in the litigation of such primordial right. Yet, in the end,
instead of reinforcing a perspective more attuned to the fullest measure
of the people's democratic rights, the Court has chosen not to rise to the
challenge.
The petition should have been granted. The assailed Resolution of
the Commission on Elections (COMELEC) directs the filing of criminal
informations against petitioners Carlos and Erlinda Romualdez for
violation of Section 10 (g) and (j) of Republic Act No. 8189(Rep. Act 8189),
also known as the Voter's Registration Act, in relation to Section 45 (j) of
the same law. It is Section 45 (j) which criminalizes the violation of
Section 10, as well as the violation of any and all other provisions of Rep.
Act 8189, as an election offense. Yet in the final analysis, Section 45 (j) is
unconstitutional, violative as it is of the due process clause, and thus
should be voided.
I.
The case stemmed from a complaint 2 dated 12 July 2000 filed with
the Commission on Elections (COMELEC) Law Department by private
respondents Dennis Garay and Angelino Apostol 3 against petitioners,
spouses Carlos and Erlinda Romualdez. The complaint alleged that
petitioners violated Sections 261 (y) (2) and 261 (y) (5) of the Omnibus
Election Code, and Section 12 (3) ofRepublic Act No. 8189 (Rep. Act
8189), also known as the Voter's Registration Act, such violations arising
from the acts initiated by petitioners in registering as voters in Burauen,
Leyte.
Petitioners had applied for registration as new voters with the
Office of the Election Officer in Burauen on 9 and 11 May 2000,
respectively. In their respective applications, petitioners stated that they
were residents of 935 San Jose St., in Burauen. They left blank the space
in the application form requiring them to state the years and months of
their "period of residence" in the aforementioned municipality. 4 The
complaint alleged that in truth petitioners were actually residents of 113
Mariposa Loop, Mariposa St., Bagong Lipunan ng Crame, Quezon City, as
well as registered voters in Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, in Quezon City. To support this factual
allegation, were various certifications issued by barangay and election
officers of Quezon City, 5 as well as the Quezon City Voter Registration
Records of the petitioners were attached to the complaint. 6
The complaint further stated that oppositions had been filed
against petitioners' application for registration in Burauen. In response
thereto, petitioners filed with the Office of the Election Officer in
Burauen various documents evincing not only their intent to transfer
their registration as voters from Quezon City to Burauen, which was their
new place of residence, but the actuality that they had began to
formalize such transfer pursuant to Section 12 of Rep. Act No. 8189.
Particularly, said documents include letters from petitioners to the
election officer of Burauen manifesting their intent to transfer their
registrations, as well as their respective Affidavits of Transfer of Voter's
Registration under Section 12, Rep. Act 8189. Petitioners also explained
that by reason of honest mistake, they had erroneously filed applications
as new voters in Burauen, instead of as transferee voters.
The complaint likewise point out the particular provisions of law for
which petitioners could be held accountable. Section 261 (y) (2) and (y)
(5) of the Omnibus Election Code respectively penalizes knowingly
making any false or untruthful statements relative to any data or
information required in the application for registration, and the re-
registration anew by a previously registered voter without the filing of an
application for cancellation of his previous registration. On the other
hand, the failure to apply for transfer of registration records due to
change of residence to another city or municipality was alleged to be in
violation of Section 12 of Rep. Act No. 8189.
The matter was referred to the Commission on Elections and
docketed as E.O. Case No. 2000-36. Petitioners filed a Joint Counter-
Affidavit with Motion to Dismiss. They alleged that they had been
intending to reside in Burauen since 1989, and they actually took up
residence therein on 9 May 2000. They claimed having left unanswered
the blank space for "period of residence" in their application for
registration because they were unsure what period of residence was
being required. 7 They also averred that as early as 18 April 2000, they
had already written the election officer in Quezon City requesting the
cancellation of their registration as voters in Barangay Bagong Lipunan
ng Crame, but the Assistant Quezon City Election Officer had refused to
acknowledge receipt of the same on the ground that the proper
procedure was to file a request for transfer of voter's registration
records with the election officer of Burauen. Petitioners noted that they
did file an Application for Transfer of Registration Records in Burauen,
and that the same was approved. Finally, they claimed that the filing of
the case was politically motivated as petitioner Carlos Romualdez was a
candidate for Congress in the second district of Leyte in the 2001
elections.
On 28 November 2003, the designated Investigating Officer
assigned to hear the case, Atty. Maria Norina Tangaro-Casingal, issued a
resolution recommending the prosecution of petitioners for the
commission of an election offense, i.e., violation of Section 10 (g) and (j)
in relation to Section 45 (j) of Rep. Act No. 8189. This recommendation
was adopted by the COMELEC en banc in a Resolution 8 dated 3 February
2004.
Section 10 of Rep. Act No. 8189 states in part:
Sec. 10. Registration of Voters. — A qualified voter shall be registered
in the permanent list of voters in a precinct of the city or municipality
wherein he resides to be able to vote in any election. To register as a
voter, he shall personally accomplish an application form for
registration as prescribed by the Commission in three (3) copies
before the Election Officer on any date during office hours after
having acquired the qualifications of a voter.
The application shall contain the following data:
(a) Name, surname, middle name, and/or maternal surname;
(b) Sex;
(c) Date, and place of birth;
(d) Citizenship;
(e) Civil status, if married, name of spouse;
(f) Profession, occupation or work;
(g) Periods of residence in the Philippines and in the place of
registration;
(h) Exact address with the name of the street and house number for
location in the precinct maps maintained by the local office of the
Commission, or in case there is none, a brief description of his
residence, sitio, and barangay;
(i) A statement that the applicant possesses all the qualifications of
a voter;
 (j) A statement that the applicant is not a registered voter of any
precinct; and
(k) Such information or data as may be required by the
Commission. . . .
The COMELEC observed that a violation of Section 10 of Rep. Act
No. 8189 is an election offense, pursuant to Section 45 (j) of the same
law, which reads:
Sec. 45. Election Offenses. — The following shall be considered
election offenses under this Act:
xxx xxx xxx
(j) Violation of the provisions of this Act.
The COMELEC found that petitioners violated Section 10 of Rep. Act
No. 8189 in two ways. First, petitioners had stated under oath that they
were not registered voters in any other precinct, when in fact, the
records showed that they still were registered voters of Precinct No.
4419-A in Barangay Bagong Lipunan ng Crame, District IV, Quezon City, at
the time they executed their application. The COMELEC pointed out that
Section 12 of the same law provided for the procedure to be observed in
cases of transfer of residence to another city/municipality, which
involved an application for transfer of registration with the Election
Officer of the new place of residence. Even though petitioners
subsequently filed an application for transfer pursuant to Section 12,
manifesting therein that they had erroneously filed an application as a
new voter by reason of honest mistake, the COMELEC pointed out that a
statutory offense such as the violation of election law is "mala
prohibita" and that good faith, ignorance or lack of malice was "beside
the point" in such cases.
Second, the COMELEC also stated that petitioners' failure to fill up
the blank portion of their application on "period of residence" likewise
constituted a violation of Section 10 (g), which specifies that the
applicant state the periods of residence in the Philippines and in the
places of registration.
A motion for reconsideration filed by petitioners was denied by the
COMELEC through a Resolution dated 27 January 2005. 9 As a result, the
present petition was filed. While the petition was pending with this
Court, two separate Informations dated 12 January 2006 were filed
against each of the petitioners by the COMELEC with the Regional Trial
Court of Burauen, and corresponding Orders of Arrest were issued by the
trial court judge.
Petitioners allege before us that the COMELEC Resolution violates
their constitutional right to due process, as well as their constitutional
rights under Section 14 (1) and (2), Article III of the Constitution. In that
regard, they point out that while the complaint alleged violations of
Sections 261 (y) (2) and (5) of the Omnibus Election Code and Section 12
of Rep. Act 8189, they were charged instead with violation of different
provisions of law altogether. Petitioners likewise argue that Section 45 (j)
of Rep. Act 8189 is "vague", as "it does not specifically refer to a definite
provision of law the violation of which would constitute an election
offense." The provision is thus "not the 'fair notice' required by
the Constitution for provisions of this Act."
 Section 45 (j) is vague. It does not provide "fair notice" to the
citizenry and the standards for enforcement and adjudication. In precise
legal terms, I submit that Section 45 (j) violates the due process clause
of the Constitution, and should accordingly be nullified.
II.
No person shall be deprived of life, liberty or property without due
process of law. The due process clause makes legally operative our
democratic rights, as it establishes freedom and free will as the
normative human conditions which the State is bound to respect. Any
legislated restrictions imposed by the State on life, liberty or property
must be in accordance with due process of law. The scope of "due
process", as we currently understand it, is admittedly ambitious, but in
its elemental form, it encompasses aboriginal values ascribed to justice
such as equity, prudence, humaneness and fairness.
Section 45 (j) is vague. It does not provides "fair notice" to the
citizenry, as well as the standards for enforcement and adjudication.
Thus, the section violates the due process clause and thus deserves to
be struck down.
The potency of the due process clause has depended on judicial
refinement, to allow for the crystallization of its abstract ideals into a set
of standards, from which a deliberate determination can be had whether
the provision bears operative effect following a given set of facts. As a
result, various subsets to due process have emerged, including the
distinction between procedural due process and substantive due
process. Stated very generally, substantive due process guarantees
against the arbitrary exercise of state power, while procedural due
process is a guarantee of procedural fairness. 10 Substantive and
procedural due process are equally sacrosanct in the constitutional
order, and a law that is infirm in either regard is wholly infirm.
Among the components of due process, particularly concerning
penal statutes, is the fair notice requirement. The Court, through Justice
Sarmiento, acknowledged in People v. Nazario 11 that a statute violates
due process, and thus repugnant to theConstitution, if it fails "to accord
persons, especially the parties targeted by it, fair notice of the conduct
to avoid." 12 Such flaw is one characteristic of a vague statute, the other
being that "it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle." 13 Both attributes earmark a statute as "vague", the generally
accepted definition of a vague statute being one that lacks
comprehensible standards that people "of common intelligence must
necessarily guess at its meaning and differ as to its application." 14
Even though the "fair notice" rule is integral to due process itself, it
finds realization in still another provision of our Bill of Rights. Section 14
(2), Article III 15 assures that an accused is "to be informed of the nature
and cause of the accusation against him." Both Justice Cruz and Fr.
Bernas acknowledge that this constitutional right extends not only to
the criminal information against the accused, but also to the language of
the statute under which prosecution is pursued. 16 Yet our own
jurisprudence has yet to expressly link the fair notice requirement with
Section 14 (2), Article III, 17 though this need not be a contestable point
since the due process clause under Section 1, Article III already
embodies the fair notice requirement.
 As earlier stated, a penal statute that violates the fair notice
requirement is marked by vagueness because it leaves its subjects to
necessarily guess at its meaning and differ as to its application. What
has emerged as the most contentious issue in the deliberations over this
petition is whether such vagueness may lead to the nullification of a
penal law. Our 2004 ruling in Romualdez v. Sandiganbayan 18 states: "It is
best to stress at the outset that the overbreadth and the vagueness
doctrines have special application only to free-speech cases. They are
not appropriate for testing the validity of penal statutes." 19 The time has
come to reconsider that statement. Rooted in unyielding formalism and
deprived of guidance from basic constitutional tenets,
thatdicta disenchants the rights of free people, diminishing as it does,
the basic right to due process.
III.
A deeper analysis of the vagueness doctrine is in order.
Employing the terminology preferred by Collings, the vagueness
doctrine is a specie of "unconstitutional uncertainty", which may involve
"procedural due process uncertainty cases" and "substantive due
process uncertainty cases." 20 "Procedural due process uncertainty"
involves cases where the statutory language was so obscure that it
failed to give adequate warning to those subject to its prohibitions as
well as to provide proper standards for adjudication. 21 Such a definition
encompasses the vagueness doctrine. 22This perspective rightly
integrates the vagueness doctrine with the due process clause, a
necessary interrelation since there is no constitutional provision that
explicitly bars statutes that are "void-for-vagueness".
Void-for-vagueness derives from the basic tenet of criminal law that
conduct may not be treated as criminal unless it has been so defined by
an authority having the institutional competence to do so before it has
taken place. It requires that a legislative crime definition be
meaningfully precise. 23
The inquiry into whether a criminal statute is "meaningfully
precise" requires the affirmative satisfaction of two criteria. First, does
the statute fairly give notice to those it seeks to bind of its strictures?
Second, is the statute precise enough that it does not invite arbitrary
and discriminatory enforcement by law enforcement authorities? Unless
both criteria are satisfied, the statute is void for vagueness.
There are three concerns animating the vagueness doctrine. First,
courts are rightly concerned that citizens be fairly warned of what
behavior is being outlawed; second, courts are concerned because
vague laws provide opportunities for arbitrary enforcement and put the
enforcement decisions in the hands of police officers and prosecutors
instead of legislatures; finally, where vague statutes regulate behavior
that is even close to constitutionally protected, courts fear a chilling
effect will impinge on constitutional rights. 24 These three interests have
been deemed by the U.S. Supreme Court as important enough to justify
total invalidation of a statute, 25 such invalidation warranted unless there
is some intervening act that has eliminated the threat to those
interests. 26
In its essence, the vagueness doctrine is a critical implement to the
fundamental role of the courts to rule justly and fairly. 27Uncertainty in
statutes enables persons to be penalized for acts which are not
precisely defined in law as criminal, or for acts which are
constitutionally protected but cast within an overbroad definition of a
crime.
Our special focus now lies with the "void-for-vagueness" or
"procedural due process uncertainty" rule. Two coordinate functions are
served by the doctrine: guidance to the individual in planning his future
conduct, and guidance to those adjudicating his rights and duties. 28 It is
clear that some substantial degree of definiteness should be required of
penal statutes, for if a person is to be charged with knowledge of all his
rights and duties under a statute regardless of whether he has read or
understood it, fundamental fairness requires that he be given at least the
opportunity to discover its existence, its applicability, and its meaning.
While the due process requirements of publication are designed to fill
the first of those needs, the due process requirements of definiteness
are designed to fill the latter two. 29
The requirement of certainty arose from a fundamental common-
law concept, a matter of fairness, and an element of due process of
law. 30 No one will deny that a criminal statute should be definite enough
to give notice of required conduct to those who would avoid its penalties,
and to guide the judge in its application and the attorney defending
those charged with its violation. 31 The rules must be definite enough to
enable the judge to make rulings of law which are so closely referable to
the statute as to assure consistency of application. 32 In addition, the
statute must serve the individual as a guide to his future conduct, and it
is said to be too indefinite if "men of common intelligence must
necessarily guess at its meaning and differ as to its application." 33 If the
statute does not provide adequate standards for adjudication, by which
guilt or innocence may be determined, it will be struck down. 34
The danger of a statute that suffers from the vagueness defect
cannot be underestimated. Taken to the extreme, the absence of any
clear and definite standards for conviction would leave the matter of
freedom of the accused solely upon the discretion of the judge, to whom
the language of the statute would offer no guide to adjudication. At
worse, it could represent "the coercive force of society run loose at the
whim of the [prosecutor] without adequate restraint at the level of the
trial court (for want of standards by which to restrain), enforced against
indigent and unrepresented defendants." 35 Indeed, the chances for
acquittal as against a vague statute are significantly bettered depending
on the skill of the defense counsel, and the poorer an accused is, the
slimmer the chances that a skilled counsel would be within means. Void-
for-vagueness statutes strike special impunity at the impoverished. They
smack of unmitigated heedlessness of the lot of the likely victims of
their built-in uncertainty, especially the underprivileged.
Romualdez, 36 cited by the ponencia, is unfortunately insensate to
these constitutional concerns. That decision referenced Estrada v.
Desierto 37 as basis for its response to the vagueness challenge.
The ponencia in Estrada did adopt and incorporate the views stated by
Justice Mendoza in his Separate Opinion, particularly, that "[t]he
overbreadth and vagueness doctrines then have special application only
to free speech cases. . . [t]hey are inapt for testing the validity of penal
statutes. . . the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing 'on their faces' statutes in free
speech cases or, as they are called in American law, First Amendment
cases [t]hey cannot be made to do service when what is involved is a
criminal statute." 38
However, in his Separate Opinion to the Resolution (on the Motion
for Reconsideration) dated 29 January 2002, Justice Mendoza
acknowledged:
[L]et it be clearly stated that, when we said that 'the doctrines
of strict scrutiny, overbreadth and vagueness are analytical tools for
testing 'on their faces' statutes in free speech cases or, as they are
called in American law, First Amendment cases [and therefore]
cannot be made to do service when what is involved is a criminal
statute', we did not mean to suggest that the doctrines do not apply
to criminal statutes at all. They do although they do not justify a
facial challenge, but only an as-applied challenge, to those statutes.
. . Neither did we mean to suggest that the doctrines justify facial
challenges only in free speech or First Amendment cases. To be
sure, they also justify facial challenges in cases under the Due
Process and Equal Protection Clauses of the Constitution with
respect to so-called 'fundamental rights'. . ." 39
In light of Justice Mendoza's subsequent clarification, it is a
disputable matter whether Estrada established a doctrine that "void-for-
vagueness or overbreadth challenges do not apply to penal statutes," the
reference thereto in Romualdez notwithstanding. However, there is no
doubt that Romualdez itself, which did not admit to a similar
qualification or clarification, set forth a "doctrine" that "the overbreadth
and the vagueness doctrines have special application only to free-
speech cases [and] are not appropriate for testing the validity of penal
statutes." As a result, the Office of the Solicitor General
invokes Romualdez in its present Memorandum before the Court, and the
petitioners in at least one other case now pending before this Court
urges the reexamination of that doctrine.
The ponente has also cited in tandem with
the Romualdez precedent this Separate Opinion of Justice Mendoza for
the purpose of denominating the key issue as whether the vagueness
doctrine can be utilized as an analytical tool to challenge the statute
"on-its-face" or "as applied". Unfortunately, we can only engage that
question if we acknowledge in the first place that the doctrine of
vagueness can be applied to criminal statutes, because if not (as
pronounced in Romualdez), there is no point in distinguishing between
on-its-face and as-applied challenges. Moreover, this subsequent
Separate Opinion, especially as it may distinguish from Justice
Mendoza's earlier and more sweeping Separate Opinion, cannot be
asserted as reflective of a doctrine announced by this Court. What works
towards such effect is Romualdez, which again does not offer such
clarificatory distinction, and which certainly does not concede, as
Justice Mendoza eventually did, that "we did not mean to suggest that
the doctrines [of void-for-vagueness] do not apply to criminal statutes at
all" and that "neither did we mean that that doctrines do not justify
facial challenges" +in cases under the Due Process and Equal Protection
Clauses of the Constitution with respect to the so-called 'fundamental
rights.'"
 What we have thus seen is the queer instance of obiter in a latter
case, Romualdez v. Sandiganbayan, making a doctrine of anobiter in an
earlier case, Estrada v. Desierto.
Moreover, the controversial statement in Romualdez, as adopted
from Estrada with respect to the vagueness challenge being applicable
only to free speech cases, is simply not reflective of the American
jurisprudential rule which birthed the vagueness doctrine in the first
place.
The leading American case laying down the rules for the vagueness
challenge is Connally v. General Construction Co., 40decided by the U.S.
Supreme Court in 1926. It concerned a statute creating an eight (8)-hour
workday in Oklahoma, through a provision which read:
'That not less than the current rate of per diem wages in the
locality where the work is performed shall be paid to laborers,
workmen, mechanics, prison guards, janitors in public institutions,
or other persons so employed by or on behalf of the state, . . . and
laborers, workmen, mechanics, or other persons employed by
contractors or subcontractors in the execution of any contract or
contracts with the state, . . . shall be deemed to be employed by or
on behalf of the state. . . .' (388) 41
The statute further penalized violations thereof with a fine. A
constitutional challenge to this statute was raised that the statutory
provisions, "if enforced, will deprive plaintiff, its officers, agents and
representatives, of their liberty and property without due process of law,
in violation of the Fourteenth Amendment to the Federal Constitution;
that they contain no ascertainable standard of guilt; that it cannot be
determined with any degree of certainty what sum constitutes a current
wage in any locality; and that the term 'locality' itself is fatally vague and
uncertain." The U.S. Supreme Court agreed, holding:
That the terms of a penal statute creating a new offense must
be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a
well-recognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law; and a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process
of law. . . . 42
The dividing line between what is lawful and unlawful cannot be left
to conjecture. The citizen cannot be held to answer charges based
upon penal statutes whose mandates are so uncertain that they will
reasonably admit of different constructions. A criminal statute
cannot rest upon an uncertain foundation. The crime, and the
elements constituting it, must be so clearly expressed that the
ordinary person can intelligently choose, in advance, what course it
is lawful for him to pursue. Penal statutes prohibiting the doing of
certain things, and providing a punishment for their violation, should
not admit of such a double meaning that the citizen may act upon the
one conception of its requirements and the courts upon another.
We are of opinion that this provision presents a double uncertainty,
fatal to its validity as a criminal statute. In the first place, the words
'current rate of wages' do not denote a specific or definite sum, but
minimum, maximum, and intermediate amounts, indeterminately,
varying from time to time and dependent upon the class and kind of
work done, the efficiency of the workmen, etc., as the bill alleges is
the case in respect of the territory surrounding the bridges under
construction. The statutory phrase reasonably cannot be confined to
any of these amounts, since it imports each and all of them. The
'current rate of wages' is not simple, but progressive — from so much
(the minimum) to so much (the maximum), including all between; and
to direct the payment of an amount which shall not be less than one
of several different amounts, without saying which, is to leave the
question of what is meant incapable of any definite answer.
See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 24-25, 59 N. E. 716, 52
L. R. A. 814, 82 Am. St. Rep. 605.
Nor can the question be solved by resort to the established canons of
construction that enable a court to look through awkward or clumsy
expression, or language wanting in precision, to the intent of the
Legislature. For the vice of the statute here lies in the impossibility of
ascertaining, by any reasonable test, that the Legislature meant one
thing rather than another, and in the futility of an attempt to apply a
requirement, which assumes the existence of a rate of wages single
in amount, to a rate in fact composed of a multitude of gradations. To
construe the phrase 'current rate of wages' as meaning either the
lowest rate or the highest rate, or any intermediate rate, or, if it were
possible to determine the various factors to be considered, an
average of all rates, would be as likely to defeat the purpose of the
Legislature as to promote it. See State v. Partlow, 91 N. C. 550, 553,
49 Am. Rep. 652; Commonwealth v. Bank of Pennsylvania, 3 Watts &
S. (Pa.) 173, 177.
In the second place, additional obscurity is imparted to the
statute by the use of the qualifying word 'locality'. Who can say,
with any degree of accuracy, what areas constitute the locality
where a given piece of work is being done? Two men, moving in any
direction from the place of operations, would not be at all likely to
agree upon the point where they had passed the boundary which
separated the locality of that work from the next locality. It is said
that this question is settled for us by the decision of the state
Supreme Court on rehearing in State v. Tibbetts, 205 P. 776, 779. But
all the court did there was to define the word 'locality' as meaning
'place', 'near the place', 'vicinity', or 'neighborhood'. Accepting this
as correct, as of course we do, the result is not to remove the
obscurity, but rather to offer a choice of uncertainties. The word
'neighborhood' is quite as susceptible of variation as the word
'locality'. Both terms are elastic and, dependent upon
circumstances, may be equally satisfied by areas measured by rods
or by miles. See Schmidt v. Kansas City Distilling Co., 90 Mo. 284,
296, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16; Woods v. Cochrane and
Smith, 38 Iowa, 484, 485; State ex rel. Christie v. Meek, 26 Wash.
405, 407-408, 67 P. 76; Millville Imp. Co. v. Pitman, etc., Gas Co., 75
N. J. Law, 410, 412, 67 A. 1005; Thomas v. Marshfield, 10 Pick.
(Mass.) 364, 367. The case last cited held that a grant of common to
the inhabitants of a certain neighborhood was void because the
term 'neighborhood' was not sufficiently certain to identify the
grantees. In other connections or under other conditions the term
'locality' might be definite enough, but not so in a statute such as
that under review imposing criminal penalties. Certainly, the
expression 'near the place' leaves much to be desired in the way of
a delimitation of boundaries; for it at once provokes the inquiry,
'How near?' And this element of uncertainty cannot here be put
aside as of no consequence, for, as the rate of wages may vary — as
in the present case it is alleged it does vary — among different
 employers and according to the relative efficiency of the workmen,
so it may vary in different sections. The result is that the
application of the law depends, not upon a word of fixed meaning in
itself, or one made definite by statutory or judicial definition, or by
the context or other legitimate aid to its construction, but upon the
probably varying impressions of juries as to whether given areas are
or are not to be included within particular localities. The
constitutional guaranty of due process cannot be allowed to rest
upon a support so equivocal. 43
The statute in question did not involve a proscription on free
speech, but a standard of wages with a corresponding financial penalty
for violation thereof. Without any consideration to the notion that the
"void-for-vagueness" challenge should be limited to free speech cases,
the U.S. High Court accepted the notion that a vague statute could be
invalidated and then proceeded to analyze whether the statute was
indeed vague. The fact that the statute was invalidated makes it clear
then that the "void-for-vagueness" challenge could be employed against
a penal statute.
Within the next 73 years, the U.S. Supreme Court repeatedly
invalidated penal statutes on the ground of "void-for-vagueness", 44 in the
cases of Cline v. Frink Dairy Co., 45 Lanzetta v. State of New
Jersey, 46 Papachristou v. City of Jacksonville, 47 Grayned v. City of
Rockford, 48 Smith v. Goguen 49 and Kolender v. Lawson. 50 More recently,
in 1999, the U.S. Supreme Court reiterated the rule in City of Chicago v.
Morales 51 as it invalidated an anti-loitering ordinance. The decision
explained the ordinance as follows:
The ordinance creates a criminal offense punishable by a fine
of up to $500, imprisonment for not more than six months, and a
requirement to perform up to 120 hours of community service.
Commission of the offense involves four predicates. First, the police
officer must reasonably believe that at least one of the two or more
persons present in a "public place" is a "criminal street gang
membe[r]". Second, the persons must be "loitering", which the
ordinance defines as "remain[ing] in any one place with no apparent
purpose." Third, the officer must then order "all" of the persons to
disperse and remove themselves "from the area". Fourth, a person
must disobey the officer's order. If any person, whether a gang
member or not, disobeys the officer's order, that person is guilty of
violating the ordinance. 52
In explaining why the ordinance suffered from the "void-for-
vagueness" defect, the U.S. Supreme Court, through Senior Associate
Justice John Paul Stevens, first attacked the statutory definition of
"loitering":
. . . The Illinois Supreme Court recognized that the term "loiter" may
have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E.
2d, at 61, but the definition of that term in this ordinance —"to remain
in any one place with no apparent purpose" — does not. It is difficult
to imagine how any citizen of the city of Chicago standing in a public
place with a group of people would know if he or she had an
"apparent purpose". If she were talking to another person, would she
have an apparent purpose? If she were frequently checking her watch
and looking expectantly down the street, would she have an apparent
purpose?
 Since the city cannot conceivably have meant to criminalize
each instance a citizen stands in public with a gang member, the
vagueness that dooms this ordinance is not the product of
uncertainty about the normal meaning of "loitering", but rather
about what loitering is covered by the ordinance and what is not.
The Illinois Supreme Court emphasized the law's failure to
distinguish between innocent conduct and conduct threatening
harm. Its decision followed the precedent set by a number of state
courts that have upheld ordinances that criminalize loitering
combined with some other overt act or evidence of criminal intent.
However, state courts have uniformly invalidated laws that do not
join the term "loitering" with a second specific element of the
crime. 53
Next, the U.S. Supreme Court explained the principle of "fair notice"
that necessitated the "void-for-vagueness" rule:
First, the purpose of the fair notice requirement is to enable the
ordinary citizen to conform his or her conduct to the law. "No one
may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451,
453 (1939). Although it is true that a loiterer is not subject to criminal
sanctions unless he or she disobeys a dispersal order, the loitering is
the conduct that the ordinance is designed to prohibit. If the loitering
is in fact harmless and innocent, the dispersal order itself is an
unjustified impairment of liberty. If the police are able to decide
arbitrarily which members of the public they will order to disperse,
then the Chicago ordinance becomes indistinguishable from the law
we held invalid in Shuttlesworth v. Birmingham, an officer may issue
an order only after prohibited conduct has already occurred, it
cannot provide the kind of advance notice that will protect the
putative loiterer from being ordered to disperse. Such an order
cannot retroactively give adequate warning of the boundary between
the permissible and the impermissible applications of the law.
. . . Lack of clarity in the description of the loiterer's duty to
obey a dispersal order might not render the ordinance
unconstitutionally vague if the definition of the forbidden conduct
were clear, but it does buttress our conclusion that the entire
ordinance fails to give the ordinary citizen adequate notice of what
is forbidden and what is permitted. The Constitution does not
permit a legislature to "set a net large enough to catch all possible
offenders, and leave it to the courts to step inside and say who
could be rightfully detained, and who should be set at large." United
States v. Reese, 92 U.S. 214, 221 (1876). This ordinance is therefore
vague "not in the sense that it requires a person to conform his
conduct to an imprecise but comprehensible normative standard,
but rather in the sense that no standard of conduct is specified at
all." Coates v. Cincinnati, 402 U.S. 611, 614 (1971). 54
In her concurring opinion, Justice Sandra Day O'Connor offered this
succinct restatement of the void-for-vagueness rule:
A penal law is void-for-vagueness if it fails to "define the
criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited" or fails to establish
guidelines to prevent "arbitrary and discriminatory enforcement" of
the law. Kolender v. Lawson, 461 U.S. 352, 357 (1983). Of these, "the
more important aspect of vagueness doctrine 'is . . . the
requirement that a legislature establish minimal guidelines to
govern law enforcement'. "Id., at 358 (quoting Smith v. Goguen, 415
 U.S. 566, 574-575 (1974)). I agree that some degree of police
discretion is necessary to allow the police "to perform their
peacekeeping responsibilities satisfactorily." See post, at 12
(dissenting opinion). A criminal law, however, must not permit
policemen, prosecutors, and juries to conduct "a standardless
sweep . . . to pursue their personal predilections." Kolender v.
Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575). 55
Consider the lucid explanation of Gunther and Sullivan, which
integrates the principles established by American jurisprudence on that
point:
The concept of vagueness under the [freedom of expression
clause in the] First Amendment [of the U.S. Constitution] draws on
the procedural due process requirement of adequate notice, under
which a law must convey 'sufficient definite warning as to the
proscribed conduct when measured by common understanding and
practices." Jordan v. DeGeorge, 341 U.S. 223 (1951) A law will be
void on its face for vagueness if persons "of common intelligence
must necessarily guess at its meaning and differ as to its
application." Connally v. General Construction Co., 269 U.S. 385
(1926). One of the purposes of this requirement is to ensure fair
notice to the defendant. But the ban on vagueness protect not only
liberty, but also equality and the separation of executive from
legislative power through the prevention of selective enforcement.
See Smith v. Goguen (415 U.S. 566): "We have recognized that the
more important aspect of the vagueness doctrine is not actual
notice, but the other principal element of the doctrine — the
requirement that legislatures set reasonably clear guidelines for
law enforcement officials and triers of fact in order to prevent
arbitrary and discriminatory enforcement". . . . 56
Prior to Romualdez, Philippine jurisprudence had recognized the
susceptibility of penal statutes to the vagueness challenge, even if they
did not pertain to the free exercise of speech. Nazario, earlier cited, was
one such case. Another instance, was People v. Dela Piedra, 57 decided in
2001, where the Court announced:
Due process requires that the terms of a penal statute must
be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties. A
criminal statute that "fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the
statute", or is so indefinite that "it encourages arbitrary and erratic
arrests and convictions", is void for vagueness. The constitutional
vice in a vague or indefinite statute is the injustice to the accused
in placing him on trial for an offense, the nature of which he is given
no fair warning. 58
Dela Piedra is inconsistent with the
subsequent Romualdez doctrine, yet it embodies the correct basic
proposition which is sensitive to the fundamentals of the due process
clause. There was, and still is, no good or logical reason for Philippine
jurisprudence to adopt an opposing rule from that in American
jurisprudence in relation to the void-for-vagueness doctrine. Is the
doctrine that "void-for-vagueness" cannot invalidate penal statutes
somehow more appropriate to the Filipino mindset than to the American
way? I really could not see any reason to foster the contrary rule unless
it is the intent to effectively moot in the Philippines the right of a Filipino
accused to be informed of the nature of the accusation against him/her
through a penal law that defines the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited or establishes guidelines to prevent "arbitrary and
discriminatory enforcement" of the law.
IV.
It is clear that a criminal statute may be nullified on the ground of
void-for-vagueness. What are the requisites that must obtain before a
suit predicated on such ground may be brought before the courts?
Assuming that the suit successfully demonstrates the vagueness of the
statute or provision of law, what remedy can the courts apply?
There are orthodox precepts in Philippine law that may find
application in the resolution of void-for-vagueness cases. Long
established in our jurisprudence are the four requisites for judicial
inquiry: an actual case or controversy; the question of constitutionality
must be raised by the proper party; the constitutional question must be
raised at the earliest possible opportunity; and the constitutional
question must be necessary to the determination of the case
itself. 59 These requisites would accommodate instances such as those
in the present case, where the constitutional challenge to the penal law
is raised by the very persons who are charged under the questioned
statute or provision.
On the premise that the statute in question contravenes the due
process clause because it is vague, our jurisprudence likewise supplies
the options for remedial measures which the Court can undertake. In
essence, under Philippine jurisprudence, the courts possess a wide berth
of discretion when confronted with a penal statute that is impermissibly
vague. The general rule is that an unconstitutional act is not law; it
confers no rights, imposes no duties, affords no protection, creates no
office; it is, in legal contemplation, as inoperative as though it had never
been passed. 60 At the same time, there are doctrines in statutory
construction that authorize the courts to allow the survival of the
challenged statute or provision of law. It is a well-settled rule that a
statute should be construed whenever possible in a manner that will
avoid conflict with the Constitution. 61 Where a statute is reasonably
susceptible of two constructions, one constitutional and the other
unconstitutional, that construction in favor of its constitutionality shall
be adopted while the construction that renders it invalid rejected.
Yet in the United States, even as the U.S. Supreme Court has long
recognized vague penal laws as contrary to the due process clause, 62 it
has also recognized special considerations when the assailed statute
also infringes on the First Amendment. The U.S. Supreme Court,
in Grayned v. City of Rockford, 63 expresses thus:
It is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that man
is free to steer between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to
be prevented, laws must provide explicit standards for those who
apply them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc
 and subjective basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague statute
"abut[s] upon sensitive areas of basic First Amendment freedoms,"
it "operates to inhibit the exercise of [those] freedoms." Uncertain
meanings inevitably lead citizens to "'steer far wider of the unlawful
zone' . . . than if the boundaries of the forbidden areas were clearly
marked." 64
One year after Grayned was decided in 1972, a divided U.S.
Supreme Court handed down its decision in Broadrick v. Oklahoma,65 a
ruling that would have significant impact in the analysis of First
Amendment cases. Significantly, Broadrick was the main case cited by
Justice Mendoza in his Separate Opinion in Estrada v. Sandiganbayan in
support of his assertion that "[t]he overbreadth and vagueness doctrines
then have special application only to free speech cases." 66
To understand Broadrick, it should be noted that under U.S.
jurisprudence, the general rule is that "an individual has no standing to
litigate the rights of third persons." 67 Another traditional rule is the "as
applied" mode of judicial review which "tests the constitutionality of
legislation as it is applied to particular facts on a case-by-case
basis." 68 Both these traditional rules found an exception in the
overbreadth doctrine, which is animated by the principle that "a
government purpose to control or prevent activities constitutionally
subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms." 69 Particularly in regard to First Amendment cases,
overbreadth carved exceptions to the traditional rules of constitutional
litigation. "First, it results in the invalidation of a law 'on its face' rather
than 'as applied' to a particular speaker." 70"Second, overbreadth is an
exception to the usual rules on standing . . . challengers are in effect
permitted to raise the rights of third parties." 71
In Broadrick, the U.S. Supreme Court found the opportunity to limit
the application of the overbreadth doctrine. But the constitutional
challenge made therein was not limited to overbreadth for question of
vagueness was also raised against a state law restricting the partisan
political activities of Oklahoma state employees. In dealing with the
vagueness aspect, the majority opinion concluded that the challenged
provisions were not impermissibly vague, applying the standard test set
forth in cases such asGrayned.
Whatever other problems there are with 818, it is all but
frivolous to suggest that the section fails to give adequate warning
of what activities it proscribes or fails to set out "explicit
standards" for those who must apply it. Grayned v. City of Rockford,
supra,at 108. In the plainest language, it prohibits any state
classified employee from being "an officer or member" of a
"partisan political club" or a candidate for "any paid public office".
It forbids solicitation of contributions "for any political organization,
candidacy or other political purpose" and taking part "in the
management or affairs of any political party or in any political
campaign". Words inevitably contain germs of uncertainty and, as
with the Hatch Act, there may be disputes over the meaning of such
terms in 818 as "partisan", or "take part in", or "affairs of" political
parties. But what was said in Letter Carriers, ante, at 578-579, is
applicable here: "there are limitations in the English language with
respect to being both specific and manageably brief, and it seems
 to us that although the prohibitions may not satisfy those intent on
finding fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the public
interest." 72
However, in ruling on the claim of overbreadth, Broadrick did not
utilize any previously established test or standard, but instead
pronounced a new standard of "substantial overbreadth", otherwise
known as "strong medicine". 73 It is clear that the Court in Broadrick still
recognized the distinction between vagueness and overbreadth, and
resolved those two questions separately. Nonetheless, as is manifest in
Justice Mendoza's Separate Opinion in Estrada, the impression is that
the same doctrines apply to both vagueness and overbreadth,
notwithstanding Broadrick. Why is that so?
As earlier explained, a vague penal statute is constitutionally
offensive because it fails to give fair notice to those subjected to the
regulation as to what conduct is precisely proscribed. On the other hand,
a statute that suffers from overbreadth is one drawn so broadly, as it
penalizes protected speech or behavior as well as such acts within the
right of the State to prohibit. Thus, a statute that prohibits "the
commission of illegal acts within state universities" is arguably vague,
as it does not sufficiently define what exactly constitutes "illegal acts".
On the other hand, a statute that proscribes "the commission of acts
within state universities that help promote rebellion" is arguably
overbroad. Such a statute may encompass not only those acts of
rebellion within the ambit of the State to penalize, but also legitimate
political expressions or criticisms of the State which are fundamentally
guaranteed under the free expression clause.
Another material distinction. In the case of overbroad statutes, it is
necessary to inquire into the potential applications of the legislation in
order to determine whether it can be unconstitutionally applied. 74 In
contrast, the constitutional flaws attached to a vague statute are
evident on its face, as the textual language in itself is insufficient in
defining the proscribed conduct.
Broadrick had alluded to the problems concerning legal standing
with respect to overbreadth cases. Because the area involved was the
First Amendment, litigants had traditionally been "permitted to challenge
a statute not because their own right of free expression are violated, but
because of a judicial prediction or assumption that the statute's very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." 75 Yet such expansive
standing was problematic for the majority in Broadrick.
The consequence of our departure from traditional rules of
standing in the First Amendment area is that any enforcement of a
statute thus placed at issue is totally forbidden until and unless a
limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally
protected expression. Application of the overbreadth doctrine in this
manner is, manifestly, strong medicine. 76
Thus, as a means of regulating standing in overbreadth cases, the
U.S. Supreme Court announced in Broadrick:
[F]acial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset,
 attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from "pure speech" toward conduct and that
conduct — even if expressive — falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may
deter protected speech to some unknown extent, there comes a point
where that effect — at best a prediction — cannot, with confidence,
justify invalidating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is admittedly within
its power to proscribe. . . . To put the matter another way, particularly
where conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute's plainly legitimate sweep. It is
our view that 818 is not substantially overbroad and that whatever
overbreadth may exist should be cured through case-by-case analysis
of the fact situations to which its sanctions, assertedly, may not be
applied.
Broadrick jointly addressed the two concerns with respect to
overbreadth cases — standing and the facial invalidation of statutes. It
conceded that a successful overbreadth challenge necessitated the
facial invalidation of the statute, a remedy characterized as "strong
medicine". In order to limit the application of such "strong medicine", the
U.S. Supreme Court declared that "the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep." 77
Do the same concerns on the overbreadth doctrine that
informed Broadrick extend as well to vagueness? It must be recognized
that the problem of overbreadth has no integral relation to procedural
due process, which is the fundamental constitutional problem brought
forth by vagueness. Moreover, the overbreadth doctrine developed amidst
concerns over restrictions on First Amendment rights and can be said
was formulated to bolster the guarantee of free expression. It is not as
clear that the same degree of concern over the right of free expression
was key to the development of the vagueness doctrine, which after all,
primarily offended a different constitutional value.
Since First Amendment values were at stake, the U.S. Supreme
Court, prior to Broadrick, had found it necessary to relax the rules on
standing with respect to overbreadth cases, a development which the
subsequent Broadrick Court found disconcerting enough as to reverse
direction. Yet contrary to the insinuation in Justice
Mendoza's Estrada opinion, Broadrick should not bar challenges to vague
penal statutes brought forth by those sought to be penalized under the
assailed law. The restrictions on standing brought forth
in Broadrick have no material relation to the legitimate concerns of a
defendant who is being prosecuted under a law that defies the fair
notice requirement under the due process clause.
A brief note, at this juncture. Justice Carpio offers his own analysis
of "facial challenge" and "as-applied" challenge. His submission
discusses both concepts from the perspective of standing, contending
that the present suit cannot be considered as a "facial challenge", or a
challenge against the constitutionality of a statute that is filed where
the petitioner claims no actual violation of his own rights under the
assailed statute, but relies instead on the potential violation of his or
other persons' rights. Instead, according to Justice Carpio, the present
suit may be considered as an "as-applied" challenge, the traditional
approach where the petitioner raises the violation of his constitutional
rights irrespective of the constitutional grounds cited.
I have no dispute with the characterization of the present suit as an
"as-applied" challenge, as well as the statement that third-party standing
to assail the constitutionality of statutes is impermissible as a general
rule. Said positions can be accommodated following our traditional rules
of standing in constitutional cases, even if these rules hardly employ the
terms "facial challenge" or "as-applied challenge". The difficulty with the
submission's preferred terms is that in United States jurisprudence, a
"facial challenge" pertains not only to third-party standing in
constitutional cases, but also the "facial invalidation" of statutes. This
matter is problematic if we are to consider the holding of the U.S.
Supreme Court in U.S. v. Salerno, 78 penned by the conservative Chief
Justice Rehnquist.
In 1987, a divided U.S. Supreme Court ruled that the "facial
challenge" is "the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under
which the Act would be valid." 79This characterization differs greatly
from Justice Carpio's analysis that "facial challenge" only pertains to
standing. Salernohas given rise to another implication to the "facial
challenge" under American jurisprudence — that the nullification of a
statute will be justified only if it is established that under no set of
circumstances would the law remain valid. Interestingly, the Separate
Opinion of Justice Mendoza in Estrada also favorably cites Salerno and
the above-quoted declaration therein, a citation that adds to the
confusion. Yet by simply distinguishing "facial challenge" (standing) from
"facial invalidation" (adjudication on the merits), we can easily divorce
this holding in Salerno from the aspect of standing, since there is no
material relationship between the question of standing and the quoted-
pronouncement in Salerno.
Evidently, if we are to accept the Salerno proposition, and declare
that the "facial invalidation" is warranted only upon demonstration that
under no set of circumstances will the challenged provision be
constitutional, such a doctrine would stand as the Everest of judicial
review. It would, among others, consequence in the affirmation of
Section 45 (j).
But should we accept the Salerno proposition? Tellingly, the
declaration has not been met with unanimity in the American legal
community. In a subsequent case, Washington v. Glucksberg, 80 Justice
John Paul Stevens noted in his concurring opinion that:
Upholding the validity of the federal Bail Reform Act of 1984,
the Court stated in United States v. Salerno, 481 U.S. 739 (1987),
that a "facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act
would be valid." Id., at 745. I do not believe the Court has ever
actually applied such a strict standard, even in Salerno itself, and
the Court does not appear to apply Salerno here. Nevertheless, the
Court does conceive of respondents' claim as a facial challenge —
addressing not the application of the statute to a particular set of
plaintiffs before it, but the constitutionality of the statute's
 categorical prohibition against "aid[ing] another person to attempt
suicide." 81
Further, in City of Chicago v. Morales, 82 the U.S. Supreme Court
refused to work within the parameters ostensibly set forth in Salerno.
Held the U.S. Supreme Court through Justice Stevens: "There is no need,
however, to decide whether the impact of the Chicago ordinance on
constitutionally protected liberty alone would suffice to support a facial
challenge under the overbreadth doctrine. For it is clear that the
vagueness of this enactment makes a facial challenge appropriate. This
is not an ordinance that "simply regulates business behavior and
contains a scienter requirement." It is a criminal law that contains
no mens rea requirement, and infringes on constitutionally protected
rights. When vagueness permeates the text of such a law, it is subject to
facial attack." 83
Moreover, the Salerno proposition is simply alien to the Philippine
experience. Our jurisprudence has traditionally deigned to nullify or
facially invalidate statutes or provisions thereof without need of
considering whether "no set of circumstances exists under which the
[law or provision] would be valid." Among recent examples of laws or
legal provisions nullified as unconstitutional by this Court are B.P. Blg.
885, 84 the Marcos-issued Executive Order No. 626-A, 85 Section 46 of
Rep. Act No. 4670, 86 Rep. Act No. 7056, 87provisions of the 2000 General
Appropriations Act passed by Congress, 88 and most recently, Section 47
of P.D. 198. 89 Indeed, in a similar vein to the observations of Justice
Stevens as to the American experience, the impossibly high standard set
forth in Salernohas never been applied squarely in this jurisdiction.
If the auto-limiting philosophy set forth Salerno should have
influence in this jurisdiction, it should only be to the effect that the
remedy of constitutional nullification should be resorted to by the courts
if there is no other means by which the unconstitutional defect of the
law or legal provision can be treated. Then again, such a principle is
already laid down by our accepted rules of statutory construction, such
as that "a statute should be construed whenever possible in a manner
that will avoid conflict with theConstitution", or that "where a statute is
reasonably susceptible of two constructions, one constitutional and the
other unconstitutional, that construction in favor of its constitutionality
shall be adopted, and the construction that will render it invalid
rejected."
Our own jurisprudence must expressly reject Salerno, if only
because that case has fostered the impression that a "facial challenge",
or a "facial invalidation" necessitates a demonstration that the law
involved is unconstitutional in whatever application. Even though such
impression is not universally accepted, our acceptance of the viability of
either the "facial challenge" or "facial invalidation" in this jurisdiction
without accompanying comment on Salerno might imply that the
extremely high bar for judicial review set therein prevails in the
Philippines.
In order to avoid any further confusion, especially that which may
be brought about by Salerno, I had proposed during deliberations the
following definitions for usage in Philippine jurisprudence:
As to standing
 The ability of a petitioner to bring forth a suit challenging the
constitutionality of an enactment or provisions thereof, even if the
petitioner has yet not been directly injured by the application of the law
in question, is referred to as a "facial challenge".
The ability of a petitioner to judicially challenge a law or provision
of law that has been specifically applied against the petitioner is
referred to as an "as-applied challenge".
As to adjudication on the merits
The nullification on constitutional grounds by the courts of a
provision of law, or even of the entire statute altogether, is referred to as
"facial invalidation".
The invalidation of the application of a provision of law or a statute
only insofar as it applies to the petitioner and others similarly situated,
without need to nullify the law or provision thereof, is referred to as "as-
applied invalidation".
I submit that these terms provide a greater degree of clarity than
simply using "facial challenge" and "as-applied challenge". My
subsequent discussion shall hence utilize such terms as well.
V.
The Court, this time and through this case, should reassert that the
vagueness challenge is viable against penal statutes. The vagueness
challenge is a critical defense to all persons against criminal laws that
are arbitrarily drawn, formulated without thoughtful deliberation, or
designed to yield to the law enforcer the determination whether an
offense has been committed. Section 45 (j) of Rep. Act 8189 is indeed a
textbook example of a vague penal clause. The ponencia submits that
Section 45 (j) does not suffer from the infirmity as it ostensibly
establishes that violation of any provision of Rep. Act No. 8189 is an
election offense. I cannot accept the proposition that the violation of
just any provision of Rep. Act No. 8189, as Section 45 (j) declares with
minimal fanfare, constitutes an election offense punishable with up to
six (6) years of imprisonment.
Section 45 (j) categorizes the violation of any provision of Rep. Act
8189 as an election offense, thus effectively criminalizing such
violations. Following Section 46 of the same law, any person found guilty
of an election offense "shall be punished with imprisonment of not less
than one (1) year but not more than six (6) years."
Virtually all of the 52 provisions of Rep. Act 8189 define an act,
establishes a policy, or imposes a duty or obligation on a voter, election
officer or a subdivision of government. Virtually all of these provisions
are susceptible to violation, the only qualifier being that they incorporate
a verb.
For example, Section 4 states that the "precinct-level list of voters
shall be accompanied by an addition/deletion list for the purpose of
updating the list." If the precinct-level list of voters is not accompanied
by an addition/deletion list, an election offense is committed, according
to Section 45 (j). But if that is so, who commits the election offense? The
COMELEC? What about if the attachment addition/deletion list was
somehow alleged as not being geared towards updating the list? Would
that constitute an election offense?
 Under Section 37, a voter who was excluded from the certified list
of voters due to inadvertence or registered with an erroneous or
misspelled name may file a petition for an order directing that his name
be entered or corrected. Such voter is also required to attach to a
"certified copy of the registration record or identification car or the entry
of his name in the certified list of voters used in the preceding election,
together with the proof that his application was denied or not acted upon
by the Election Registration Board." If the voter fails to attach any of
these requirements, no matter the reason, an election offense as defined
under Section 45 (j) has been committed, and the voter may be
sentenced to prison. As to what precisely are the elements of this
particular crime, I am at a loss to define.
Even the most innocuous of oversights can be deemed as an
election offense under Rep. Act 8189. For example, Section 10 requires
that the applicant-voter submit four (4) identification-size copies of
his/her latest photograph. If such voter submits only three (3) photos
instead of four (4), then he/she is theoretically violating a provision
of Rep. Act No. 8189, and is thus committing an election offense under
Section 45 (j) punishable by no less than one (1) year of imprisonment
without the possibility of probation. Another example, Section 14
requires that the application for registration of a physically disabled
person must be prepared by a relative within the fourth degree of
consanguinity, the Election Officer, or a member of an accredited
citizen's arm. If an elderly disabled widow has her trusted maid prepare
the application for her, then an election offense is committed as such act
violates a provision of Rep. Act No. 8189. The maid, or perhaps even the
widow herself, may now face a prison term of no less than one (1) year.
In his Separate Opinion, Justice Carpio provides even more telling
illustrative samples 90 of crimes under Rep. Act 8189 if the
draft ponencia were upheld. Indeed, one can make a parlor game out of
discerning all the possible acts that constitute a crime because of
Section 45 (j). Yet any entertainment that can be derived out of such
exercise will be muted because the consequence involves prison terms.
The very absurdity of such implausible, yet legally possible
prosecutions, lend doubt as to whether the legislature had truly intended
such penal consequences. Because Section 45 (j) is impermissibly
vague, such doubts could be entertained, to consequences that are
deleterious to our freedoms. If Section 45 (j) were left by the Court as is,
it would be a validation that our legislators so intended to penalize so
trifling an offense.
Moreover, not only does the vagueness of Section 45 (j) deprive the
voters, election officials, or indeed any live person (since the provisions
of Rep. Act 8189 are susceptible to violation by just about anybody) of
fair notice as to what conduct is exactly proscribed and criminalized. It
also leaves prosecutors and judges at a loss as to how exactly to
prosecute or adjudge an election offense under Section 45 (j).
We can reasonably presume that save for the specific election
offenses under Section 45 (a) to (j) and the specific penal clause under
Section 10 of Rep. Act 8189, all the other provisions of the law were not
crafted with the intent to devise a penal provision. Outside of the bare
text of the provision, it would be impossible to discern the precise
elements of the crime, and since these provisions were not designed as
penal provisions in the first place, there was no deliberate intent to
design every subject-verb agreement as an element to a crime.
For example, Section 14 provides that with respect to illiterate or
disabled applicants, "[t]he fact of illiteracy or disability shall be so
indicated in the application [for registration]." Shorn of any criminal
context, as it most assuredly was in the minds of the legislators, the
clause merely required that the fact of illiteracy or disability should be
indicated in the application. Seen benignly, the only concern of the
provision is that such fact be manifested in the application. Since the
provision does not even mandate that it be the applicant himself or
herself who should make such indication, there would be no impediment
for the election officer to make the indication in behalf of the applicant.
But if indeed that clause of Section 14 does actually embody an
election offense, it would be virtually impossible for the prosecutor or
the judge to ascertain the elements of such crime. Facially, there would
appear only to be one element of the crime, the absence of any
indication in the application of the fact of illiteracy or disability. But
there is no indication on the face of the provision as to who exactly
commits the crime. Neither is there clarity as to how exactly such crime
is precisely committed.
It bears remembering that it is the second concern of the
vagueness doctrine, that the statute is precise enough that it does not
invite arbitrary and discriminatory enforcement by law enforcement
authorities, that is perhaps the more important aspect of the doctrine.
Section 45 (j) is militantly offensive to that consideration.
Our Philippine criminal laws are predicated on crimes that have
precisely defined elements, and the task of the judge is to determine
whether these elements have been proven beyond reasonable doubt. For
the most part, each crime currently defined in our penal laws consist of
only a handful of elements, providing the judge a clearly defined
standard for conviction or acquittal.
That is not the case for a penal provision predicated on "any
violation of this Act". A legislative enactment can consist of 100
provisions. Each provision may describe just one act, right, duty or
prohibition, or there could be several contained in just one provision. The
catch-all penal provision ostensibly criminalizes the violation of any one
right, duty, or prohibition, of which there could be hundreds in just one
statute. Just any one of these possibly hundreds of acts mentioned in
the law is an element of the consummated crime under the catch-all
provision such as Section 45 (j), thus greatly increasing the risk for
conviction under such a provision. There could be literally hundreds of
ways that a catch-all provision in just one law could become the source
of imprisonment.
Obviously, broader standards lead to broader discretion on the part
of judges. Some judges may tend towards a narrow application of a
provision such as Section 45 (j), while others might be inclined towards
its broad application. What is certain is that no consistent trend will
emerge in criminal prosecutions for violations of provisions such as
Section 45 (j), a development that will not bode well for the fair and
consistent administration of justice. Provisions such as Section 45 (j) do
nothing for the efficient administration of justice. Since such a provision
is laced with unconstitutional infirmity, I submit it is the task of the
Court to say so, in order that the courts will need not be confronted with
this hydra of statutory indeterminacy.
The COMELEC did point out that an election offense under Section
45 (j) is malum prohibitum, which is a correct restatement of prevailing
doctrine, yet a prospect that makes the provision even more disturbing.
Returning to Section 14, the illiterate or disabled voter precisely requires
special assistance because of his/her personal condition which impairs
the ability to properly fill up the application form. As such, the likelihood
of inadvertently failing to indicate the fact of illiteracy or disability is
present. Since any criminal intent is irrelevant, any honest mistake
unforgivable, just because Rep. Act 8189 embodies malum
prohibitum offenses, the illiterate or disabled voter who inadvertently
fails to indicate the fact of his/her impairment in the application simply
has no defense against imprisonment, except the pity of the judge. And
even then, such pity, if wielded, may exceed the discretion of the judge
since the application of the malum prohibitum law simply calls for the
execution of its penal clauses once the offense has been
established. Dura lex sed lex, indeed.
VI.
I now wish to address certain points raised by the ponente in
rebuttal of my arguments. The claim that the Court should not touch
upon the constitutionality of Section 45 (j) because it is not the lis
mota of the case is, with due respect, absurd. While the ponencia claims
that the lis mota of this case is the alleged grave abuse of discretion on
the part of the COMELEC, it cannot be denied that the valid prosecution
of the petitioners integrally depends on the constitutionality of Section
45 (j). It appears that the real reason the majority refuses to
acknowledge that the constitutionality of Section 45 (j) is the lis mota is
simply because they do not find that provision unconstitutional, as
roundabout a path to reason as there ever has been.
The other contentions of the ponente submitted in rebuttal to my
position warrant more extensive dissection.
A.
The ponente invokes People v. Gatchalian 91 in an attempt to
convince that a "catch-all" penal provision is not inherently
unconstitutional, since the Court in 1958, ruling 6-3, had sustained a
criminal prosecution based on such a provision found in the since-
repealed Minimum Wage Law. 92 However, with all due respect, the
discussion fails to take into account distinguishing nuances and
contexts that differentiate Gatchalian and its relevant statutes from the
present case and Rep. Act No. 8189.
We cannot deny the fact that the void-for-vagueness constitutional
challenge, as with some other standards of constitutional adjudication,
had not yet found full fruition within our own jurisprudence at the
time Gatchalian was decided in 1958, a year when the oldest members of
the Court were still studying in law school, and the youngest among us
still in short pants. Indeed, the jurisprudential appreciation then of our
fundamental constitutional rights differed in several critical respects
from our presently accepted standards. In 1958, evidence seized from
unconstitutional searches and seizures were admissible into evidence,
as the court adopted the exclusionary rule only in 1967 with Stonehill v.
Diokno. In 1958, the suspension of that fundamental right — the privilege
of the writ of habeas corpus — was still believed to be a political
question which could not be the subject of judicial inquiry, the adverse
rule emerging only in 1971 with Lansang v. Garcia. 93 In 1958, there was
yet no express recognition from this Court of a constitutional right to
privacy independent from the right to liberty, such recognition came only
in 1968 with Morfe v. Mutuc. 94 These are but a few of the more
prominent examples that can be plumbed from our jurisprudence.
I raise this point for I respectfully submit that Gatchalian can
conclusively settle the present case in favor of the ponente'sposition
only if we believe in a static and unyielding theory of jurisprudence that
blindly ignores the refreshing new insights and wisdoms each new
generation gifts to civilization. Our own jurisprudential history
indubitably reveals that this Court does not adhere to so rigid an
ideology. A vote that Section 45 (j) is constitutional only for the simple
reason that a like-minded provision was sustained way back in 1958
would be premised on a philosophy utterly alien to the progressive
traditions of the Supreme Court.
We need to view the questions now material at bar with a fresh
perspective, with an understanding that we may need to break new
ground if need be, to arrive at the proper and enlightened resolution of
the question. Gatchalian cannot serve as crutch to sustain the
constitutionality of Section 45 (j). It is eminently possible to declare the
nullity of Section 45 (j) without having to invalidate the core reasoning
and ultimate result of Gatchalian.
B.
In Gatchalian, the accused therein was prosecuted under Section
15 (a) of the Minimum Wage Law. Said provision reads:
SEC. 15. Penalties and recovery of wage due under this Act. —
(a) Any person who willfully violates any of the provisions of this Act
shall upon conviction thereof be subject to a fine of not more than
two thousand pesos, or, upon second conviction, to imprisonment of
not more than one year, or to both fine and imprisonment, in the
discretion of the court.
The accused in Gatchalian was alleged to have violated, in
particular, Section 3 of the Minimum Wage Law, which prescribed the
minimum wage rates an employer "shall pay to each of his employees".
The key mark in Section 15 is its qualification that there must be a
"willful violation of any of the provisions" of the Minimum Wage
Law before a criminal prosecution can be had. This distinguishes from
Section 45 (j), which does not offer such a critical qualification of intent.
The indispensable presence of "willful violation" as an element to the
criminal offense supplies the penal statute with mens rea, an element
which has been defined as "a guilty mind, a guilty or wrongful purpose or
criminal intent." In the 1998 case of City of Chicago v. Morales. 95 one of
the cases which I have extensively cited, the U.S. Supreme Court had
comfortably ruled that the U.S. Supreme Court has comfortably held that
"a criminal law that contains no mens rea requirement infringes on
constitutionally protected rights."
 Crucially, the Court majority 96 that decided Gatchalian expressly
emphasized the fact that Section 15 expressly limited such prosecutions
only to "willful violations" when it affirmed the provision.
It is clear from the above-quoted provisions that while Section
3 explicitly requires every owner of an establishment located
outside of Manila or its environs to pay each of its employees P3.00
a day on the effective date of the Act, and one year thereafter P4.00
a day, Section 15 imposes both a criminal penalty for a willful
violation of any of the above provisions and a civil liability for any
underpayment of wages due an employee. The intention of the law is
clear: to slap not only a criminal liability upon an erring employer for
any willful violation of the acts sought to be enjoined but to attach
concurrently a civil liability for any underpayment he may commit
as a result thereof. The law speaks of a willful violation of "any of
the provisions of this Act", which is all-embracing, and the same
must include what is enjoined in Section 3 thereof which embodies
the very fundamental purpose for which the law has been
adopted. 97
Had the Court ruled Section 45 (j) of the Voter's Registration
Act unconstitutional, such pronouncement will not overturn or even be
intellectually inconsistent with Gatchalian. For one, there are enough
textual qualifications in Section 15 as opposed to Section 45 (j) that spell
the difference between a constitutional penal statute and a void one.
Moreover, the same constitutional considerations we have and will fully
consider in this petition were not addressed in Gatchalian.
The accused in Gatchalian had premised his motion to dismiss on
two grounds: that Section 3 carried only a civil liability and did not
constitute a criminal offense; and assuming that Section 3 did constitute
a criminal offense, the same provision did not carry any penalty
penalizing it. 98 These were the two distinct issues which were
addressed by the majority, and also to which the three dissenters
responded to. The difference between those issues as formulated
in Gatchalian and those presently confronting us is self-evident.
Still, the accused in Gatchalian did offer the following argument
that may be taken into account as we consider the present case. The
argument pertains to the proper interpretation of Section 15 (a), which
the accused had argued would result in absurdity should it "be
interpreted in a manner that would embrace a willful violation of any of
the provisions of the law." 99 As recounted inGatchalian:
Counsel for appellee however entertains a different
interpretation. He contends that if Section 15(a) should be
interpreted in a manner that would embrace a wilful violation of any
of the provisions of the law we would have a situation where even
the officials entrusted with its enforcement may be held criminally
liable which is not contemplated in the law. Thus, he contends, the
Secretary of Labor may be criminally prosecuted for willfully not
using all available devices for investigation [Section 4(c)], for not
presenting to the Wage Board all the evidence in his possession
relating to the wages in the industries for which the Wage Board is
appointed and other information relevant to the establishment of
the minimum wage [Section 5(p)], and for not doing all other acts
which the law requires him to do under Section 6. This, he
emphasizes, is absurd and should not be entertained. 100
 The tenor of this argument is teasingly similar to that adopted by an
esteemed colleague and myself in our respective submissions.
The ponente has more or less responded dismissively towards this
arguments, relying on comforting platitudes such as "the wisdom of a
law is beyond this Court's function of inquiry."
Perhaps, considering that the ponente now relies on Gatchalian, it
should be expected that the Gatchalian Court would have responded to
the above-quoted argument in a like-manner. But it clearly did not.
Instead, it emphasized:
To begin with, the Minimum Wage Law is a social legislation
which has been adopted for the benefit of labor and as such it
contains provisions that are enjoined to be observed by the
employer. These provisions are substantive in nature and had been
adopted for common observance by the persons affected. They
cannot be eluded nor subverted lest the erring employer runs into
the sanction of the law. On the other hand, the provisions adverted
to by counsel are merely administrative in character which had
been adopted to set the machinery by which the law is to be
enforced. They are provisions established for observance by the
officials entrusted with its enforcement. Failure to comply with
them would therefore subject them merely to administrative
sanction. They do not come under the penal clause embodied in
Section 15(a). This is clearly inferred from Section 18(c), of Republic
Act No. 602, which provides: "Any official of the Government to
whom responsibility in administration and enforcement has been
delegated under this Act shall be removable on the sustaining of
charges of malfeasance or non-feasance in office." This specific
provision should be interpreted as qualifying the penal clause
provided for in Section 15(a). 101
The Court in Gatchalian plainly realized and acknowledged that
there are limitations to the plausible application of Section 15 (a), even if
these were not textually committed in the provision itself. The most
sweeping of these limitations is the admonition that those administrative
officials charged with correlative rights and duties under the Minimum
Wage Law could not be criminally liable under Section 15 (a), despite the
absence of any such clarificatory language in the law itself. I myself am
not too comfortable with the methodology used by the Court in so
qualifying, considering the absence of any statutory support that would
have indubitably justified this conclusion. 102
Yet if we were to examine this passage in the present context,
where considerations on the question of void-for-vagueness have fully
blossomed, the Court in Gatchalian expressly acknowledged that Section
15 (a) would have been untenable in some applications, such as if an
administrative officer were criminally charged under that provision. In
effect, the Court tacitly acknowledged in Gatchalian that Section 15 (a)
was indeed void-for-vagueness, and that line of attack would have been
viable to any administrative officer actually charged under that
provision. It would have been one thing for the Court in Gatchalian to
have approached that argument by responding that the wisdom of
Section 15 (a) was beyond judicial inquiry. That approach would have
aligned with that of the ponente. Instead, Gatchalian rejected that
approach and instead expressed an opinion that current-day
commentators would appreciate as an embryonic formulation of the
"void-as-applied" principle.
 VII.
Since it has been established that Section 45 (j) infringes on
procedural due process, the final inquiry should be whether the
nullification of Section 45 (j) is warranted.
Given the problem of vagueness that attends to Section 45 (j), is
facial invalidation of the statute warranted?
The practical value of facial invalidation in this case cannot be
discounted. Unless Section 45 (j) is nullified, it may still be utilized as a
means of criminal prosecution. Because there are dozens, if not
hundreds, of different contexts under which a criminal offense may
carved out of Section 45 (j), limiting the challenges to the provision to
"as-applied" and its case-by-case method will prove woefully inadequate
in addressing the elemental lack of fair notice that plagues the provision.
The very vagueness of Section 45 (j) makes it an ideal vehicle for
political harassment. The election season will undoubtedly see a rise in
the partisan political temperature, where competing candidates and
their camps will employ every possible legal tactic to gain an advantage
over the opponents. Among these possible tactics would be the
disenfranchisement of voters who may be perceived as supporters of the
other side; or the disqualification of election officers perceived as either
biased or impartial enough to hamper a candidate with ill-motives.
The disenfranchisement of voters or the disqualification of election
officers could be accomplished through prosecutions for election
offenses. Even if these prosecutions do not see fruition, the mere filing
of such charges could be enough to dampen enthusiasm in voting, or
strike fear in conducting honest and orderly elections.
Unfortunately, Section 45 (j) is an all too easy tool for mischief of
this sort. One can invent any sort of prosecution using any provision
of Rep. Act No. 8189 that would fall within the ambit of the offending
Section 45 (j). It would not even matter if the charge is meritorious or
not, just the systematic filing of complaints based on Section 45 (j) is
sufficient to alter the political climate in any locality.
I find it odd, suspicious even, that the COMELEC is insisting on
prosecution the petitioners on Section 45 (j), and not the Omnibus
Election Code. The acts for which they are charged are classified as an
election offense under Section 261 (y) of the Omnibus Election Code
which specifically charges as election offenses "any person who
knowingly makes any false or untruthful statement relative to any of the
data or information required in the application for registration;" and "any
voter who, being a registered voter, registers anew without filing an
application for cancellation of his previous registration." I have no idea
whether the COMELEC sees this case as a test case for prosecutions
under Section 45 (j). What I do know is that if the Court debunks the
present challenge to Section 45 (j), the COMELEC will be emboldened to
pursue more prosecutions under Section 45 (j), a prospect that would
hearten the most partisan of political operatives. The result would not
only be more frivolous complaints for violation of Section 45 (j), but also
an undue and utterly unnecessary temperature rise in the political
climate.
It might be argued that a ruling that simply imposes an "as-applied
invalidation" on Section 45 (j) would sufficiently disquiet such concern. I
disagree. Any room left for discretion or interpretation of Section 45 (j)
would be sufficient for one with intent to harass voters or election
officials with the threat of prosecution under that provision. After all,
just the mere filing of the complaint is enough to effect harassment.
Besides, I submit that the acts already expressly criminalized as election
offenses, whether under the Omnibus Election Code, or under Rep. Act
No. 8189, already encompass the whole range of election offenses that
could possibly be committed. The petitioners could have been charged
instead with violating Section 261 (y) of the Omnibus Election Code.
In recent years, Congress has chosen to employ phraseology similar
to Section 45 (j) in a number of laws, such as the Cooperative
Code, 103 the Indigenous Peoples Rights Act, 104 and the Retail Trade
Liberalization Act. 105 I know from my own experience that this is the
product of a legislative predilection to utilize a standard template in the
crafting of bills.
I have come to believe that this standard phraseology constitutes a
dangerous trend, and a clear stand from this Court that Section 45 (j) is
unconstitutional for being void-for-vagueness would make the legislature
think twice before employing such terminology in the laws that it passes.
The problem is less obvious if the law in question contains only a few
provisions, where any person can be reasonably expected to ascertain
with ease what particular acts are made criminal. However, in more
extensive laws such as Rep. Act No. 8189 or the especially long codes,
such expectation could not be reasonably met. I am aware that
compliance with the requisites for the publication of laws is considered
legally sufficient for the purposes of notice to the public, but I submit
that a measure of reason should be appreciated in evaluating that
requirement. If a law runs 400 pages long, with each sentence detailing
an act that is made criminal in nature, the doctrine "ignorance of the law
excuses no one" should not be made a ready and convenient excuse,
especially if, as in Rep. Act 8189, the act is made criminal only by
implication of a provision such as Section 45 (j).
We should think of the public good that would prevail if the Court
makes the stand that Congress cannot criminalize a whole range of
behavior by simply adding a multi-purpose, catch-all provision such as
Section 45 (j). Congress will be forced to deliberate which precise
activities should be made criminal. Such deliberate thought leads to
definitive laws that do not suffer the vice of void-for-vagueness. These
definite laws will undoubtedly inform the people which acts are
criminalized, a prospect wholly consonant with constitutional
guarantees of fair notice and due process.
No doubt, Section 45 (j) and its ilk in law are dangerous provisions.
It would be best if the Court send a message that this intended
prosecution of the petitioners could be accomplished only through the
Omnibus Election Code, which after all specifically penalizes the acts for
which they are alleged to have committed.
In the case at bar, an ideal resolution would be to grant the petition
and void Section 45 (j) and the COMELEC resolutions authorizing
prosecution under it, but without prejudice to the authorization of
prosecution of the petitioners under the Omnibus Election Code,
assuming of course such a tack is still legally feasible.
 This solution would satisfy whatever motivation there is to sanction
the petitioners, yet at the same time make it clear to the COMELEC that
prosecutions under Section 45 (j) of Rep. Act No. 8189 cannot avail
before this Court. At the same time, the Court would be able to reiterate
comforting precepts — that prosecutions under criminal laws that
specifically define and particularly criminalize the acts constituting the
offense are preferred over those laws that broadly define criminal
offenses; that the Court will not provide sanctuary to any abusive resort
to Section 45 (j) of Rep. Act No. 8189; and that would-be voters who
neglect to pay great care to the process of voter registration will face
the sanction of the law.
Sad to say, the majority's ruling today is beyond comprehension. No
good will come out of it. For one, it opens a Pandora's box of all sorts of
malicious wholesale prosecutions of innocent voters at the instance of
political partisans desirous to abuse the law for electoral gain. It
emboldens Congress to continue incorporating exactly the same
provision in the laws it enacts, no matter how many hundreds of acts or
provisions are contained in the particular statute. For that matter, it
signals that vague penal laws are acceptable in this jurisdiction. Left
unabated, the doctrine will be reflexively parroted by judges, lawyers and
law students memorizing for their bar exams until it is accepted as the
entrenched rule, even though it simply makes no sense. Bad folk wisdom
handed down through the generations is soon regarded as gospel truth. I
sincerely hope the same mistake is not made with the lamentable
doctrine affirmed by the majority today.
I respectfully dissent.
CARPIO, J., dissenting opinion:

Petitioners are charged under two Informations for violation of

Section 10 (g) and (j) 1 in relation to Section 45 (j) of Republic Act No.
8189. 2 RA No. 8189 does not state that violations of Section 10 (g) and
(j) are election offenses. However, Section 45 (j) makes a blanket
declaration that "[V]iolation of any of the provisions of this Act" is an
election offense.
Petitioners now assail Section 45 (j) as unconstitutional for
vagueness as it does not refer to any particular provision of RA No. 8189.
Petitioners claim a violation of their constitutional right under the due
process clause. 3 Petitioners assert that a penal statute must provide
"fair notice" of what is a criminal act and what is a lawful act.
Petitioners claim that Section 45 (j), a penal law that carries the penalty
of imprisonment from one to six years, 4 violates their constitutional
right to "fair notice" because it is vague.
The due process clause, which guarantees that no person shall be
deprived of life, liberty or property without due process of law, requires
that citizens are given sufficient notice or warning of what is lawful and
unlawful conduct under a penal statute. To enforce this guarantee,
courts have developed the void for vagueness doctrine. The void for
vagueness doctrine expresses the rule that for an act to constitute a
crime, the law must expressly and clearly declare such act a crime. A
related doctrine is that penal statutes are construed strictly against the
state and liberally in favor of the accused.
 Petitioners' constitutional attack on Section 45 (j) under the due
process clause puts in issue two other requirements for the validity of a
penal statute. First, a penal statute must prescribe an ascertainable
standard of guilt to guide courts in adjudication. 5Second, a penal
statute must confine law enforcers within well-defined boundaries to
avoid arbitrary or discriminatory enforcement of the law. 6
Petitioners challenge the constitutionality of Section 45 (j) "as
applied" to them in a live case under which they face prosecution. This is
the traditional "as applied" approach in challenging the constitutionality
of any statute. In an "as applied" challenge, the petitioner who claims a
violation of his constitutional right can raise any constitutional ground —
whether absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness.
The "as applied" approach embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation
of his own rights. The rule prohibits one from challenging the
constitutionality of the statute based solely on the violation of the rights
of third persons not before the court. This rule is also known as the
prohibition against third-party standing.
The U.S. Supreme Court has created a notable exception to the
prohibition against third-party standing. Under the exception, a petitioner
may mount a "facial" challenge to the constitutionality of a statute even
if he claims no violation of his own rights under the assailed statute. To
mount a "facial" challenge, a petitioner has only to show violation under
the assailed statute of the rights of third parties not before the
court. This exception allowing "facial" challenges, however, applies only
to statutes involving free speech. The ground allowed for a "facial"
challenge is overbreadth or vagueness of the statute. Thus, the U.S.
Supreme Court declared:
. . . the Court has altered its traditional rules of standing to
permit — in the First Amendment area — 'attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a
statute drawn with the requisite narrow specificity.' . . . Litigants,
therefore, are permitted to challenge a statute not because their
own rights of free expression are violated, but because of a judicial
prediction or assumption that the statute's very existence may
cause others not before the court to refrain from constitutionally
protected speech or expression. 7 (Emphasis supplied)
The rationale for this exception allowing a "facial" challenge is to
counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his
speech constitutes a crime under an overbroad or vague law may simply
refuse to speak to avoid being charged of a crime. The overbroad or
vague law chills him into silence.
Prof. Erwin Chemerinsky, a distinguished American textbook writer
on Constitutional Law, explains clearly the exception of overbreadth to
the rule prohibiting third-party standing in this manner:
The third exception to the prohibition against third-party
standing is termed the "overbreadth doctrine". A person generally
can argue that a statute is unconstitutional as it is applied to him or
her; the individual cannot argue that a statute is unconstitutional as
it is applied to third parties not before the court. For example, a
 defendant in a criminal trial can challenge the constitutionality of
the law that is the basis for the prosecution solely on the claim that
the statute unconstitutionally abridges his or her constitutional
rights. The overbreadth doctrine is an exception to the prohibition
against third-party standing. It permits a person to challenge a
statute on the ground that it violates the First Amendment (free
speech) rights of third parties not before the court, even though the
law is constitutional as applied to that defendant. In other words,
the overbreadth doctrine provides that: "Given a case or
controversy, a litigant whose own activities are unprotected may
nevertheless challenge a statute by showing that it substantially
abridges the First Amendment rights of other parties not before the
court." 8
The overbreadth doctrine is closely related to the vagueness
doctrine. 9 Both doctrines are often simultaneously invoked to mount
"facial" challenges to statutes violating free speech. 10
The doctrines of overbreadth and vagueness, as devices to mount
"facial" challenges to penal or non-penal statutes violating free speech,
are not applicable to the present petition for two reasons. First,
petitioners here assert a violation of their own constitutional rights, not
the rights of third-parties. Second, the challenged statute — Section 45
(j) of RA No. 8189, does not involve free speech. Thus, any invocation of
the doctrines of overbreadth and vagueness to mount a "facial"
challenge in the present case is grossly misplaced.
Justice Vicente Mendoza's separate opinion in Estrada v.
Sandiganbayan, 11 a case involving both "facial" and "as applied"
challenges to specific provisions of the Anti-Plunder Law, correctly
distinguished between the inapplicability of the "facial" challenge and
the applicability of the "as applied" challenge in that case. Justice
Mendoza succinctly stated, "As conduct — not speech — is its object,
the challenged provision must be examined only "as applied" to the
defendant, herein petitioner, and should not be declared unconstitutional
for overbreadth or vagueness [under a "facial" challenge]." Justice
Mendoza further explained in his separate opinion denying the motion for
reconsideration:
. . . Accordingly, as the enforcement of the Anti-Plunder Law is
not alleged to produce a chilling effect on freedom of speech or
religion or some "fundamental rights" to be presently
discussed, only such provisions can be challenged by petitioner as
are sought to be applied to him. Petitioner cannot challenge the
entire statute on its face. A contrary rule would permit litigation to
turn on abstract hypothetical applications of a statute and
disregard the wise limits placed on the judicial power by
theConstitution. . . . (Emphasis supplied) 12
In Romualdez v. Sandiganbayan, 13 petitioner Romualdez challenged
the constitutionality of Section 5 of the Anti-Graft and Corrupt Practices
Act for which petitioner Romualdez was being prosecuted. The case
clearly involved an "as applied" challenge to the constitutionality of a
statute. Thus, petitioner Romualdez could raise any constitutional
ground, including overbreadth and vagueness, to strike down Section 5.
Indeed, the Court in Romualdez stated that "the challenged provision
must be examined only "as applied" to the defendant." After discussing
the void for vagueness doctrine, the Court ruled that "the challenged
provision is not vague", thus acknowledging that the constitutionality of
a penal statute can be tested by the vagueness doctrine.
Unfortunately, the Court in Romualdez also stated: "It is best to
stress at the outset that the overbreadth and the vagueness doctrines
have special application only to free-speech cases. They are not
appropriate for testing the validity of penal statutes." The Court
concluded: "In sum, the Court holds that the challenged provision is not
vague, and that in any event, the 'overbreadth' and 'void for vagueness'
doctrines are not applicable to this case."
However, we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to
mount "facial" challenges to penal statutes not involving free speech.
These statements of the Court are also obiter
dicta since Romualdez involved an "as applied" challenge and not a
"facial" challenge to the constitutionality of a statute.
The present petition indisputably involves an "as applied" challenge
to the constitutionality of Section 45 (j) of RA No. 8189. As an "as
applied" challenge, petitioners may raise any constitutional ground to
strike down Section 45 (j). In this "as applied" challenge, petitioners may
invoke the overbreadth and vagueness doctrines to test the
constitutionality of Section 45 (j).
The threshold issue on the constitutionality of Section 45 (j) now
turns on three tests: First, does Section 45 (j) give "fair notice" or
warning to ordinary citizens as to what is criminal conduct and what is
lawful conduct? Put differently, is Section 45 (j) so vague that ordinary
citizens must necessarily guess as to its meaning and differ as to its
application? 14 Second, is Section 45 (j) so vague that it prescribes no
ascertainable standard of guilt to guide courts in judging those charged
of its violation? 15 Third, is Section 45 (j) so vague that law enforcers —
the police and prosecutors — can arbitrarily or selectively enforce it? 16
If Section 45 (j) meets all the three tests, it complies with the due
process clause and is therefore constitutional. If it fails any one of the
three tests, then it is unconstitutional and the two Informations against
petitioners based on Section 45 (j) should be quashed.
RA No. 8189 contains 52 sections and some 235 sentences, 149
paragraphs, and 7,831 words. Section 45 (j) of RA No. 8189 makes
"violation of any of the provisions" of RA No. 8189 a criminal offense, in
addition to violations expressly specified in Section 45 (a) to (i). 17
Section 45 (j) of RA No. 8189 provides:
SEC. 45. Election Offenses. — The following shall be considered
election offenses under this Act:
(a) . . .
xxx xxx xxx
(j) Violation of any of the provisions of this Act.
(Emphasis supplied)
Thus, the violation of any of the following provisions of RA No. 8189,
not covered under Section 45 (a) to (i), is a crime:
 1. Section 10, requiring that the voter's "application shall
contain the following data", listing 11 data (a to k) to be
written by the applicant. The 11th data required is "such
information or data as may be required by the
Commission." If the applicant fails to write the data
required by the Commission, he commits a crime.
Here, petitioners are charged with violating Section 10 (g) and
(j) for their alleged failure to state in their application form
the periods of their residence in the Philippines, as well as
for allegedly falsely stating that they are not registered
voters in any other precinct.
2. Section 10, requiring that the "application for registration
shall contain three (3) specimen signatures of the
applicant, clear and legible rolled prints of his left and
right thumbprints, with four identification size copies of his
latest photograph . . . ." If the applicant writes only two
specimen signatures or his thumbprints are not clear and
legible, he commits a crime.
3. Section 11 (e), stating that insane or incompetent persons
"shall be disqualified from registering." If an insane or
incompetent person registers as a voter, he commits a
crime.
4. Section 18, requiring that a challenge to an applicant for
registration "shall be under oath." If the challenger fails to
put his challenge under oath, he commits a crime.
5. Section 27, requiring that the Election Registration Board
"shall deactivate the registration and remove the
registration records" of "any person who did not vote in the
two (2) successive preceding regular elections."Members
of the Election Registration Board commit a crime if they
fail to do so.
6. Section 29, requiring that the Election Registration Board
"shall cancel the registration records of those who died as
certified by the Local Civil Registrar." If the members of
the Election Registration Board fail to do so, they commit a
crime.
7. Section 40, requiring that the Commission on Elections "shall
reconstitute all registration records which have been lost
or destroyed." If the members of the Commission on
Elections fail to do so, they commit a crime.
By no means is the foregoing enumeration exhaustive. There are
many more provisions of RA No. 8189 that may be violated by a voter,
Election Officer, or other officials of the Commission on Elections
without committing the "Election Offenses" specified in Section 45 (a) to
(i) of RA No. 8189. However, the ordinary citizen has no way of knowing
which provisions of RA No. 8189 are covered by Section 45 (j) even if he
has before him a copy of RA No. 8189.
Even Judges and Justices will differ as to which provisions of RA
No. 8189 fall under Section 45 (j). The prosecution office of the Comelec
has not specified which provisions of RA No. 8189 fall under Section 45
(j). There is no legal textbook writer who has attempted to enumerate
the provisions of RA No. 8189 that fall under Section 45 (j). Members of
the Commission on Elections will certainly dispute that failure by the
Commission to reconstitute lost or destroyed registration records
constitutes a crime on their part.
Under RA No. 8189, law enforcement officers have wide latitude to
choose which provisions of the law to consider a crime since there is no
specific enumeration of provisions falling under Section 45 (j).
Prosecutors can choose to prosecute only those who violate certain
provisions of RA No. 8189. Judges trying violators of the law have no
ascertainable standard to determine the guilt of a person accused of
violating Section 45 (j). There is no certainty which provisions of RA No.
8189 fall under Section 45 (j).
Section 45 (j) makes a blanket, unconditional declaration that
"violation of any of the provisions" of RA No. 8189 constitutes a crime. In
contrast, Section 45 (b) 18 states that to constitute a crime the failure to
give notice or to submit a report must be "without cause". Under Section
45 (j), whether the violation or omission is with or without cause, the act
constitutes a crime while under Section 45 (b) a violation or omission for
cause is not a crime.
Certainly, the lawmaker did not intend that trivial and harmless
violations, or omissions for cause, should constitute a crime under
Section 45 (j). Unfortunately, there is no way of knowing with certainty
what these trivial and harmless violations or omissions are. Everyone
will have to guess as to what provisions fall under Section 45 (j), and
their guesses will most likely differ from each other.
The last paragraph of Section 4 19 of RA No. 8189 prohibits a change
of the precinct assignment of a voter without the voter's written
consent. This paragraph expressly declares, "Any violation thereof shall
constitute an election offense which shall be punished in accordance
with law." The prohibition against such change of precinct assignment is
not one of the specific acts penalized under Section 45 (a) to (i). Since
such change of precinct assignment is expressly declared an election
offense in Section 4 itself, such act is clearly a crime and merits the
penalty prescribed in Section 46.
However, the provision in the last paragraph of Section 4 declaring a
violation of such paragraph an election offense is not found in any other
provision of RA No. 8189. The ordinary citizen will not know if the
lawmaker also intended other provisions of RA No. 8189 to carry the
same penal sanction, even in the absence of an express declaration that
violation of such provisions is an election offense. This adds to the
uncertainty of the ordinary citizen as to what constitutes criminal
conduct and what constitutes lawful conduct under RA No. 8189.
A provision in an elaborate and detailed law that contains a catch-
all provision making it a crime to violate any provision of such law does
not give "fair notice" to the ordinary citizen on what constitutes
prohibited conduct or permitted conduct under such law. Section 45 (j)
does not draw reasonably clear lines between lawful and unlawful
conduct such that the ordinary citizen has no way of finding out what
conduct is a prohibited act. 20 The ordinary citizen will have to guess
which provisions of RA No. 8189, other than those mentioned in Section
45 (a) to (i), carry a penal sanction.
 If Section 45 (j) had enumerated the specific provisions within its
coverage, then reasonable clear lines would guide the ordinary citizen as
to what acts are prohibited. Section 45 (j) does not specify those
provisions and thus fails to draw reasonable clear lines. If Section 45 (j)
is strictly applied, the ordinary citizen may simply decline to exercise his
right of suffrage to avoid unintentionally committing a crime. Section 45
(j) is a trap even to the most educated citizen.
There is no basis in the claim that since petitioners are being
prosecuted under Section 45 (j) in relation to Section 10 (g) and (j), there
is no vagueness in the law under which petitioners are charged.
Precisely, Section 45 (j) does not specify Section 10 (g) and (j) as some
the provisions of RA No. 8189 that may be violated. Only the Information
filed by the prosecutor mentions Section 10 (g) and (j) as some of the
provisions that may be violated under Section 45 (j). The Information,
however, is not part of RA No. 8189, and the prosecutor has no legislative
power to amend Section 45 (j) to cure its vagueness.
A penal law void for vagueness is not made valid by a specification
in the Information correcting the vagueness in the law. No court of law
has adopted a doctrine that the prosecutor has the power to correct a
vagueness in a penal law. Whether a law is void for vagueness under an
"as applied" challenge must be tested under the provisions of the law as
found in the statute books, and not as interpreted by the prosecutor in
the Information.
There is also no basis in the claim that any discussion on
the possible provisions of RA No. 8189 that may fall within the coverage
of Section 45 (j) constitutes a "facial" challenge on such provisions of RA
No. 8189. This is gross error. What is void for vagueness is the
provision "violation of any of the provisions of this Act", and not any of
the unnamed provisions that may be violated. No other provision in RA
No. 8189 is being challenged as unconstitutional, only Section 45 (j). The
provisions possiblyfalling within the coverage of Section 45 (j) must be
discussed to illustrate that the ordinary citizen has no way of knowing
with certitude what provisions of RA No. 8189 fall within the coverage of
Section 45 (j). The discussion shows that the ordinary citizen has no fair
notice that these are the provisions falling within the coverage of
Section 45 (j). What is being challenged is the constitutionality of
Section 45 (j), which is so vague that it could cover any of the provisions
discussed above.
In People v. Gatchalian, 21 the Court declared constitutional a
provision penalizing "any person who wilfully violates any of the
provisions" of the Minimum Wage Law. There, the Court stated:
. . . A study of the origin of our Minimum Wage Law (Republic Act 602)
may be of help in arriving at an enlightened and proper interpretation
of the provisions under consideration. Our research shows that this
Act was patterned after the U.S. Fair Labor Standards Act of 1938, as
amended, and so a comparative study of the pertinent provisions of
both would be enlightening.
The pertinent provisions of the U.S. Fair Labor Standards Act of 1938,
as amended, follow:
"MINIMUM WAGES
 SEC. 6. (a) Every employer shall pay to each of his employees
who is engaged in commerce or in the production of goods for
commerce wages at the following rates —
"(1) not less than 75 cents an hour;"
xxx xxx xxx
"PROHIBITED ACTS
SEC. 15. (a) After the expiration of one hundred and twenty, days
from the date of enactment of this Act, it shall be unlawful for
any person —
"(1) to transport, offer for transportation, ship, deliver, or sell in
commerce, or to ship, deliver; or sell with knowledge that
shipment or delivery or sale thereof in commerce is intended,
any goods in the production of which any employee was
employed in violation of section 6 or section 7, or in violation of
any regulation or order of the Administrator issued under
section 14; . . .
"(2) to violate any of the provisions of section 6 or section 7, or
any of the provisions of any regulation or order of the
Administrator issued under section 14;
"(3) to discharge or in any other manner discriminate against
any employee because such employee has filed any complaint
or instituted or cause to be instituted any proceeding under or
related to this Act, or has testified or is about to testify in any
such proceeding, or has served or is about to serve on an
industry committee;
"(4) to violate any of the provisions of section 11 (c) or any
regulation or order made or continued in effect under the
provisions of section 11 (d), or to make any statement, report, or
record filed or kept pursuant to the provisions of such section or
of any regulation or order thereunder, knowing such statement,
report, or record to be false in a material respect.
xxx xxx xxx
"PENALTIES
SEC. 16. (a) Any person who willfully violates any of the
provisions of section 15 shall upon conviction thereof be
subject to a line of not more than P10,000, or to imprisonment
for not more than six months, or both. No person shall be
imprisoned under this subsection except for an offense
committed after the conviction of such person for a prior
offense under this subsection.
"(b) Any employer who violates the provisions of section 6 or 7
of this Act shall be liable to the employee or employees affected
in the amount of their unpaid minimum wages, or their unpaid
overtime compensation, as the case may be, and in additional
equal amount as liquidated damages. Action to recover such
liability may be maintained in any court of competent
jurisdiction by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.
No employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and such
consent is filed in the court in which such action is brought. The
court in such action shall, in addition to any judgment awarded
to the plaintiff or plaintiffs, allow a reasonable attorney's fee to
be paid by the defendant costs of the action."
The pertinent provisions of Republic Act 602 read:
SEC. 3. Minimum wage. — (a) Every employer shall pay to each
of his employees who is employed by an enterprise other than in
agriculture wages at the rate of not less than —
 xxx xxx xxx
"(2) Three pesos a day on the effective date of this Act and for
one year after the effective date, and thereafter P4 a day, for
employees of establishments located outside of Manila or its
environs: Provided, That this Act shall not apply to any retail or
service enterprise that regularly employs not more than five
employees."
"SEC. 15. Penalties and recovery of wage due under this Act. —
(a) Any person who willfully violates any of the provisions of
this Act shall upon conviction thereof be subject to a fine of not
more than two thousand pesos, or, upon second conviction, to
imprisonment of not more than one year, or to both fine and
imprisonment, in the discretion of the court.
xxx xxx xxx
"(e) Any employer who underpays an employee in violation of
this Act shall be liable to the employee effected in the amount
of the unpaid wages with legal interest. Action to recover such
liability may be maintained in any competent court by anyone or
more employees on behalf of himself or themselves. The court
in such action shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable attorney's fee which
shall not exceed ten per cent of the amount awarded to the
plaintiffs, unless the amount awarded is less than one hundred
pesos, in which event the fee may be ten pesos, but not in
excess of that amount. Payment of the amount found due to the
plaintiffs shall be made directly to the plaintiffs, in the presence
of a representative of the Secretary or of the Court. In the event
payment is witnessed by the court or its representative, the
Secretary shall be notified within ten days of payment that the
payment has been made."
xxx xxx xxx
It should also be noted that while Section 16 of the Fair Labor
Standards Act which provides for the penalties to be imposed for
any willful violation of the provisions of the Act; specifically states
that those penalties refer to acts declared unlawful under Section
15 of the same Act, our law does not contain such specification. It
merely provides in Section 15 (a) that "Any person who willfully
violates any of the provisions of this Act shall upon conviction" be
subject to the penalty therein prescribed. This distinction is very
revealing. It clearly indicates that while the Fair Labor Standards
Act intends to subject to criminal action only acts that are declared
unlawful, our law by legislative fiat intends to punish not only those
expressly declared unlawful but even those not so declared but are
clearly enjoined to be observed to carry out the fundamental
purpose of the law. One such provision is undoubtedly that which
refers to the payment of the minimum wage embodied in Section 3.
This is the only rational interpretation that can be drawn from the
attitude of our Congress in framing our law in a manner different
from that appearing in the mother law. 22 (Boldfacing and
underscoring supplied)
This Court must revisit Gatchalian's holding that makes a crime
"not only those (acts) expressly declared unlawful but even those not so
declared but are clearly enjoined to be observed to carry out the
fundamental purpose of the law." Unlike the U.S. Fair Labor Standards
Act after which our Republic Act No. 602 was patterned, RA 602 does not
specify the provisions of the law the violation of which is declared
unlawful. This Court must categorically rule that only acts expressly
declared unlawful or prohibited by law, and penalized as such, are
crimes. Acts not expressly declared unlawful or prohibited can never give
rise to criminal liability. Any ambiguity in the law whether an act
constitutes a crime is resolved in favor of the accused.
To punish as crimes acts not expressly declared unlawful or
prohibited by law violates the Bill of
Rights. First, the Constitutionprovides that "[N]o person shall be held to
answer for a criminal offense without due process of law." 23 Due
process requires that the law expressly declares unlawful, and punishes
as such, the act for which the accused is held criminally liable. The void
for vagueness doctrine is aimed precisely to enforce this fundamental
constitutional right. Second, the Constitution provides that "[I]n all
criminal prosecutions, the accused shall . . . enjoy the right . . . to be
informed of the nature and cause of the accusation against him." 24 This
right of the accused requires that the Information states the particular
act the accused committed in violation of a specific provision of a law
defining such act a crime.
A blanket and unconditional declaration that any violation of an
elaborate and detailed law is a crime is too imprecise and indefinite, and
fails to define with certitude and clarity what acts the law punishes as
crimes. Such a shotgun approach to criminalizing human conduct is
exactly what the void for vagueness doctrine outlaws, thus:
That the terms of a penal statute creating a new offense must be
sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a well-
recognized requirement, consonant alike with the ordinary notions of
fair play and the settled rules of law; and a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process
of law.
xxx xxx xxx
The dividing line between what is lawful and unlawful conduct cannot
be left to conjecture. The citizen cannot be held to answer charges
based upon penal statutes whose mandates are so uncertain that
they will reasonably admit of different constructions. A criminal
statute cannot rest upon an uncertain foundation. The crime, and the
elements constituting it, must be so clearly expressed that the
ordinary person can intelligently choose, in advance, what course it
is lawful for him to pursue. . . . 25
Section 45 (j) is a penal statute. Penal statutes are construed
strictly against the state and liberally in favor of the accused. The
purpose is not to allow a guilty person to escape punishment through a
technicality but to provide a precise definition of the prohibited act. 26 To
constitute a crime, an act must come clearly within the spirit and letter
of the penal statute. 27 Otherwise, the act is outside the coverage of the
penal statute. An act is not a crime unless clearly made so by express
provision of law. This Court has declared:
Criminal statutes are to be construed strictly. No person should be
brought within their terms who is not clearly within them, nor should
any act be pronounced criminal which is not made clearly so by the
statute. 28 (Emphasis supplied)
 Section 45 (j) does not specify what provisions of RA No. 8189, if
violated, carry a penal sanction. Section 45 (j) merely states that
"violation of any of the provisions" of RA No. 8189 is a crime. In addition
to the provisions covered by Section 45 (a) to (i), there are many other
provisions of RA No. 8189 that are susceptible of violation. Section 45 (j),
however, does not specify which of these other provisions carry a penal
sanction if violated. Thus, Section 45 (j) fails to satisfy the requirement
that for an act to be a crime it must clearly be made a crime by express
provision of law.
The penal provisions of the Omnibus Election Code 29 (Code) are
instructive. Section 261 of the Code enumerates what are thespecific
prohibited acts which constitute election offenses. Section
262 30 penalizes "Other election offenses" by specifying thespecific
sections of the Code the violation of which also constitutes election
offenses. There is no room for guesswork as to what provisions the
violation of which constitutes crimes. There is "fair notice" to all citizens
of what acts are prohibited, and what acts are permitted, under the
Code. Law enforcers have no discretion to choose what provisions are
prohibited as criminal acts. Judges know with certainty what provisions
of the Code carry penal sanctions.
This is not the case with Section 45 (j) of RA No. 8189. Indisputably,
Section 45 (j) is so vague that it fails to give "fair notice" to ordinary
citizens as to what conduct is a crime and what conduct is lawful under
Section 45 (j). Section 45 (j) is also so vague that it fails to define the
prohibited acts in a precise and clear manner, allowing law enforcers to
enforce it arbitrarily while leaving courts no standard by which to
adjudge the guilt of a person accused of violating it. This substantial
vagueness in Section 45 (j) violates the due process clause.
I therefore vote to declare Section 45 (j) of RA No. 8189
UNCONSTITUTIONAL, and to GRANT the petition.
(Spouses Romualdez v. Commission on Elections, G.R. No. 167011, [April
|||

30, 2008], 576 PHIL 357-470)

 EN BANC

[G.R. No. 84818. December 18, 1989.]

PHILIPPINE COMMUNICATIONS SATELLITE

CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC
Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

SYLLABUS

1. ADMINISTRATIVE LAW; REQUISITES OF A VALID DELEGATION OF

LEGISLATIVE POWER. — Fundamental is the rule that delegation of
legislative power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature in making the
delegation has prescribed the manner of the exercise of the delegated
power. Therefore, when the administrative agency concerned, respondent
NTC in this case, establishes a rate, its act must both be non-confiscatory
and must have been established in the manner prescribed by the
legislature; otherwise, in the absence of a fixed standard, the delegation of
power becomes unconstitutional.
2. ID.; RATE-FIXING POWER; STANDARDS REQUIRED; MAY BE IMPLIED. — In
case of a delegation of rate-fixing power, the only standard which the
legislature is required to prescribe for the guidance of the administrative
authority is that the rate be reasonable and just. However, it has been held
that even in the absence of an express requirement as to reasonableness,
this standard may be implied. The inherent power and authority of the
State, or its authorized agent, to regulate the rates charged by public
utilities should be subject always to the requirement that the rates so fixed
shall be reasonable and just. A commission has no power to fix rates which
are unreasonable or to regulate them arbitrarily. This basic requirement of
reasonableness comprehends such rates which must not be so low as to be
confiscatory, or too high as to be oppressive. What is a just and reasonable
rate is not a question of formula but of sound business judgment based
upon the evidence; it is a question of fact calling for the exercise of
discretion, good sense, and a fair, enlightened and independent judgment.
In determining whether a rate is confiscatory, it is essential also to
consider the given situation, requirements and opportunities of the utility. A
method often employed in determining reasonableness is the fair return
upon the value of the property to the public utility. Competition is also a
very important factor in determining the reasonableness of rates since a
carrier is allowed to make such rates as are necessary to meet
competition. (Mla. Railroad Co. vs. A.L. Ammon Trans. Co. Inc. 218 Phil. 900
(1920)
3. ID.; ID.; INSTANCES WHEN THE SAME WAS CLASSIFIED AS QUASI-
JUDICIAL WHEN SAME WAS CLASSIFIED. — In Vigan Electric Light Co., Inc.
vs. Public Service Commission, we made a categorical classification as to
when the rate-fixing power of administrative bodies is quasi-judicial and
when it is legislative, thus: "Moreover, although the rule-making power end
even the power to fix rates — when such rules and/or rates are meant to
apply to all enterprises of a given kind throughout the Philippines — may
partake of a legislative character, such is not the nature of the order
complained of. Indeed, the same applies exclusively to petitioner herein.
What is more, it is predicated upon the finding of fact — based upon a
report submitted by the General Auditing Office — that petitioner is making
a profit of more than 12% of its invested capital, which is denied by
petitioner. Obviously, the latter is entitled to cross-examine the maker of
said report, and to introduce evidence to disprove the contents thereof
and/or explain or complement the same, as well as to refute the conclusion
drawn therefrom by the respondent. In other words, in making said finding
of fact, respondent performed a function partaking of a quasi-judicial
character, the valid exercise of which demands previous notice and
hearing." This rule was further explained in the subsequent case of The
Central Bank of the Philippines vs. Cloribel, et al. to wit: "It is also clear
from the authorities that where the function of the administrative body is
legislative, notice of hearing is not required by due process of law (See
Oppenheiner, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is
said: If the nature of the administrative agency is essentially legislative,
the requirements of notice and hearing are not necessary. The validity of a
rule of future action which affects a group, if vested rights of liberty or
property are not involved, is not determined according to the same rules
which apply in the case of the direct application of a policy to a specific
individual) . . . It is said in 73 C.J.S. Public Administrative Bodies and
Procedure, sec. 130, pages 452 and 453: Aside from statute, the necessity
of notice and hearing in an administrative proceeding depends on the
character of the proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of administrative
proceedings, it may be stated as a general rule that notice and hearing are
not essential to the validity of administrative action where the
administrative body acts in the exercise of executive, administrative, or
legislative functions; but where a public administrative body acts in a
judicial or quasi-judicial matter, and its acts are particular and immediate
rather than general and prospective, the person whose rights or property
may be affected by the action is entitled to notice and hearing.
4. ID.; ID.; REQUIREMENTS OF NOTICE AND HEARING NECESSARY EVEN IF
THE ORDER IS TEMPORARY IN NATURE. — While respondents may fix a
temporary rate pending final determination of the application of petitioner,
such rate-fixing order, temporary though it may be, is not exempt from the
statutory procedural requirements of notice and hearing, as well as the
requirement of reasonableness. Assuming that such power is vested in
NTC, it may not exercise the same in an arbitrary and confiscatory manner.
Categorizing such an order as temporary in nature does not perforce entail
the applicability of a different rule of statutory procedure than would
otherwise be applied to any other order on the same matter unless
otherwise provided by the applicable law. In the case at bar, the applicable
statutory provision is Section 16(c) of the Public Service Act which
provides: "Section 16. Proceedings of the Commission, upon notice and
hearing. — The Commission shall have power, upon proper notice and
hearing in accordance with the rules and provisions of this Act, subject to
the limitations and exceptions mentioned and saving provisions to the
contrary: (c) To fix and determine individual or joint rates, . . . which shall
be imposed, observed and followed thereafter by any public service; . . . ."
5. ID.; ID.; TEMPORARY RATE-FIXING ORDER; A FINAL LEGISLATIVE ACT AS
TO THE PERIOD DURING WHICH IT HAS TO REMAIN IN FORCE. — The order
requires the new reduced rates to be made effective on a specified date. It
becomes a final legislative act as to the period during which it has to
remain in force pending the final determination of the case. An order of
respondent NTC prescribing reduced rates, even for a temporary period,
could be unjust, unreasonable or even confiscatory, especially if the rates
are unreasonably low, since the utility permanently loses its just revenue
during the prescribed period. In fact, such order is in effect final insofar as
the revenue during the period covered by the order is concerned.
6. ID.; POWER TO REGULATE THE CONDUCT AND BUSINESS OF PUBLIC
UTILITIES; LIMITATION. — The rule is that the power of the State to
regulate the conduct and business of public utilities is limited by the
consideration that it is not the owner of the property of the utility, or
clothed with the general power of management incident to ownership,
since the private right of ownership to such property remains and is not to
be destroyed by the regulatory power. The power to regulate is not the
power to destroy useful and harmless enterprises, but is the power to
protect, foster, promote, preserve, and control with due regard for the
interest, first and foremost, of the public, then of the utility and of its
patrons. Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws.

DECISION

REGALADO, J : p

This case is posed as one of first impression in the sense that it involves
the public utility services of the petitioner Philippine Communications
Satellite Corporation (PHILCOMSAT, for short) which is the only one
rendering such services in the Philippines. cdrep

The petition before us seeks to annul and set aside an Order 1 issued by
respondent Commissioner Jose Luis Alcuaz of the National
Telecommunications Commission (hereafter, NTC), dated September 2,
1988, which directs the provisional reduction of the rates which may be
charged by petitioner for certain specified lines of its services by fifteen
percent (15%) with the reservation to make further reductions later, for
being violative of the constitutional prohibition against undue delegation of
legislative power and a denial of procedural, as well as substantive, due
process of law. llcd

The antecedental facts as summarized by petitioner 2 are not in dispute. By

virtue of Republic Act No. 5514, PHILCOMSAT was granted "a franchise to
establish, construct, maintain and operate in the Philippines, at such
places as the grantee may select, station or stations and associated
equipment and facilities for international satellite communications." Under
this franchise, it was likewise granted the authority to "construct and
operate such ground facilities as needed to deliver telecommunications
services from the communications satellite system and ground terminal or
terminals."

Pursuant to said franchise, petitioner puts on record that it undertook the

following activities and established the following installations:
1. In 1967, PHILCOMSAT established its provisional earth station in
Pinugay, Rizal.
2. In 1968, earth station standard "A" antenna (Pinugay I) was
established. Pinugay I provided direct satellite communication links
with the Pacific Ocean Region (the United States, Australia, Canada,
Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and
Brunei) thru the Pacific Ocean INTELSAT satellite.
3. In 1971, a second earth station standard "A" antenna (Pinugay II)
was established. Pinugay II provided links with the Indian Ocean
Region (major cities in Europe, Middle East, Africa, and other Asia
Pacific countries operating within the region) thru the Indian Ocean
INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna (Pinugay III)
was established to temporarily assume the functions of Pinugay I and
then Pinugay II while they were being refurbished. Pinugay III now
serves as spare or reserved antenna for possible contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard "B"
antenna at Clark Air Field, Pampanga as a television receive-only
earth station which provides the U.S. Military bases with a 24-hour
television service.
6. In 1989, petitioner completed the installation of a third standard
"A" earth station (Pinugay IV)to take over the links in Pinugay I due to
obsolescence. 3

By designation of the Republic of the Philippines, the petitioner is also the

sole signatory for the Philippines in the Agreement and the Operating
Agreement relating to the International Telecommunications Satellite
Organization (INTELSAT) of 115 member nations, as well as in the
Convention and the Operating Agreement of the International Maritime
Satellite Organization (INMARSAT) of 53 member nations, which two global
commercial telecommunications satellite corporations were collectively
established by various states in line with the principles set forth in
Resolution 1721 (XVI) of the General Assembly of the United Nations. llcd

Since 1968, the petitioner has been leasing its satellite circuits to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils., Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus provided by
petitioner enable said international carriers to serve the public with
indispensable communication services, such as overseas telephone,
telex, facsimile, telegrams, high speed data, live television in full color,
and television standard conversion from European to American or vice
versa.
Under Section 5 of Republic Act No. 5514, petitioner was exempt from the
jurisdiction of the then Public Service Commission, now respondent NTC.
However, pursuant to Executive Order No. 196 issued on June 17, 1987,
petitioner was placed under the jurisdiction, control and regulation of
respondent NTC, including all its facilities and services and the fixing of
rates. Implementing said Executive Order No. 196, respondents required
petitioner to apply for the requisite certificate of public convenience and
necessity covering its facilities and the services it renders, as well as the
corresponding authority to charge rates therefor. prcd

Consequently, under date of September 9, 1987, petitioner filed with

respondent NTC an application 4 for authority to continue operating and
maintaining the same facilities it has been continuously operating and
maintaining since 1967, to continue providing the international satellite
communications services it has likewise been providing since 1967, and to
charge the current rates applied for in rendering such services. Pending
hearing, it also applied for a provisional authority so that it can continue to
operate and maintain the above mentioned facilities, provide the services
and charge therefor the aforesaid rates therein applied for.
On September 16, 1987, petitioner was granted a provisional authority to
continue operating its existing facilities, to render the services it was then
offering, and to charge the rates it was then charging. This authority was
valid for six (6) months from the date of said order.5 When said provisional
authority expired on March 17, 1988, it was extended for another six (6)
months, or up to September 16, 1988.
The NTC order now in controversy had further extended the provisional
authority of the petitioner for another six (6) months, counted from
September 16, 1988, but it directed the petitioner to charge modified
reduced rates through a reduction of fifteen percent (15%) on the present
authorized rates. Respondent Commissioner ordered said reduction on the
following ground:
"The Commission in its on-going review of present service rates
takes note that after an initial evaluation by the Rates Regulation
Division of the Common Carriers Authorization Department of the
financial statements of applicant, there is merit in a REDUCTION in
some of applicant's rates, subject to further reductions, should the
Commission finds (sic) in its further evaluation that more reduction
should be effected either on the basis of a provisional authorization
or in the final consideration of the case." 6

PHILCOMSAT assails the above-quoted order for the following reasons:

1. The enabling act (Executive Order No. 546) of respondent NTC
empowering it to fix rates for public service communications does not
provide the necessary standards constitutionally required, hence there is
an undue delegation of legislative power, particularly the adjudicatory
powers of NTC;
2. Assuming arguendo that the rate-fixing power was properly and
constitutionally conferred, the same was exercised in an unconstitutional
manner, hence it is ultra vires, in that (a) the questioned order violates
procedural due process for having been issued without prior notice and
hearing; and (b) the rate reduction it imposes is unjust, unreasonable and
confiscatory, thus constitutive of a violation of substantive due process.
I. Petitioner asseverates that nowhere in the provisions of Executive Order
No. 546, providing for the creation of respondent NTC and granting its rate-
fixing powers, nor of Executive Order No. 196, placing petitioner under the
jurisdiction of respondent NTC, can it be inferred that respondent NTC is
guided by any standard in the exercise of its rate-fixing and adjudicatory
powers. While petitioner in its petition-in-chief raised the issue of undue
delegation of legislative power, it subsequently clarified its said submission
to mean that the order mandating a reduction of certain rates is undue
delegation not of legislative but of quasi-judicial power to respondent NTC,
the exercise of which allegedly requires an express conferment by the
legislative body.
Whichever way it is presented, petitioner is in effect questioning the
constitutionality of Executive Orders Nos. 546 and 196 on the ground that
the same do not fix a standard for the exercise of the power therein
conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may be
sustained only upon the ground that some standard for its exercise is
provided and that the legislature in making the delegation has prescribed
the manner of the exercise of the delegated power. Therefore, when the
administrative agency concerned, respondent NTC in this case, establishes
a rate, its act must both be non-confiscatory and must have been
established in the manner prescribed by the legislature; otherwise, in the
absence of a fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing power, the only
standard which the legislature is required to prescribe for the guidance of
the administrative authority is that the rate be reasonable and just.
However, it has been held that even in the absence of an express
requirement as to reasonableness, this standard may be implied. 7
It becomes important then to ascertain the nature of the power delegated
to respondent NTC and the manner required by the statute for the lawful
exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is
empowered, among others, to determine and prescribe rates pertinent to
the operation of public service communications which necessarily include
the power to promulgate rules and regulations in connection therewith.
And, under Section 15(g) of Executive Order No. 546, respondent NTC
should be guided by the requirements of public safety, public interest and
reasonable feasibility of maintaining effective competition of private
entities in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of
Transportation and Communications with control and supervision over
respondent NTC, it is specifically provided that the national economic
viability of the entire network or components of the communications
systems contemplated therein should be maintained at reasonable rates.
We need not go into an in-depth analysis of the pertinent provisions of the
law in order to conclude that respondent NTC, in the exercise of its rate-
fixing power, is limited by the requirements of public safety, public interest,
reasonable feasibility and reasonable rates, which conjointly more than
satisfy the requirements of a valid delegation of legislative power.
II. On another tack, petitioner submits that the questioned order violates
procedural due process because it was issued motu proprio, without notice
to petitioner and without the benefit of a hearing. Petitioner laments that
said order was based merely on an "initial evaluation," which is a unilateral
evaluation, but had petitioner been given an opportunity to present its side
before the order in question was issued, the confiscatory nature of the rate
reduction and the consequent deterioration of the public service could
have been shown and demonstrated to respondents. Petitioner argues that
the function involved in the rate fixing-power of NTC is adjudicatory and
hence quasi-judicial, not quasi-legislative; thus, notice and hearing are
necessary and the absence thereof results in a violation of due process.

Respondents admit that the application of a policy like the fixing of rates
as exercised by administrative bodies is quasi-judicial rather than quasi-
legislative: that where the function of the administrative agency is
legislative, notice and hearing are not required, but where an order applies
to a named person, as in the instant case, the function involved is
adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the
order in question need not be preceded by a hearing, not because it was
issued pursuant to respondent NTC's legislative function but because the
assailed order is merely interlocutory, it being an incident in the ongoing
proceedings on petitioner's application for a certificate of public
convenience; and that petitioner is not the only primary source of data or
information since respondent is currently engaged in a continuing review of
the rates charged.
We find merit in petitioner's contention.
In Vigan Electric Light Co., Inc. vs. Public Service Commission , 9 we made a
categorical classification as to when the rate-fixing power of
administrative bodies is quasi-judicial and when it is legislative, thus:
"Moreover, although the rule-making power end even the power to fix
rates — when such rules and/or rates are meant to apply to all
enterprises of a given kind throughout the Philippines — may partake
of a legislative character, such is not the nature of the order
complained of. Indeed, the same applies exclusively to petitioner
herein. What is more, it is predicated upon the finding of fact — based
upon a report submitted by the General Auditing Office — that
petitioner is making a profit of more than 12% of its invested capital,
which is denied by petitioner. Obviously, the latter is entitled to
cross-examine the maker of said report, and to introduce evidence to
disprove the contents thereof and/or explain or complement the
same, as well as to refute the conclusion drawn therefrom by the
respondent. In other words, in making said finding of fact, respondent
performed a function partaking of a quasi-judicial character, the valid
exercise of which demands previous notice and hearing."

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

The order in question which was issued by respondent Alcuaz no doubt

contains all the attributes of a quasi-judicial adjudication. Foremost is the
fact that said order pertains exclusively to petitioner and to no other.
Further, it is premised on a finding of fact, although patently superficial,
that there is merit in a reduction of some of the rates charged — based on
an initial evaluation of petitioner's financial statements — without affording
petitioner the benefit of an explanation as to what particular aspect or
aspects of the financial statements warranted a corresponding rate
reduction. No rationalization was offered nor were the attending
contingencies, if any, discussed, which prompted respondents to impose as
much as a fifteen percent (15%) rate reduction. It is not far-fetched to
assume that petitioner could be in a better position to rationalize its rates
vis-a-vis the viability of its business requirements. The rates it charges
result from an exhaustive and detailed study it conducts of the multi-
faceted intricacies attendant to a public service undertaking of such
nature and magnitude. We are, therefore, inclined to lend greater credence
to petitioner's ratiocination that an immediate reduction in its rates would
adversely affect its operations and the quality of its service to the public
considering the maintenance requirements, the projects it still has to
undertake and the financial outlay involved. Notably, petitioner was not
even afforded the opportunity to cross-examine the inspector who issued
the report on which respondent NTC based its questioned order. LibLex

At any rate, there remains the categorical admission made by respondent

NTC that the questioned order was issued pursuant to its quasi-judicial
functions. It, however, insists that notice and hearing are not necessary
since the assailed order is merely incidental to the entire proceedings and,
therefore, temporary in nature. This postulate is bereft of merit.
While respondents may fix a temporary rate pending final determination of
the application of petitioner, such rate-fixing order, temporary though it
may be, is not exempt from the statutory procedural requirements of notice
and hearing, as well as the requirement of reasonableness. Assuming that
such power is vested in NTC, it may not exercise the same in an arbitrary
and confiscatory manner. Categorizing such an order as temporary in
nature does not perforce entail the applicability of a different rule of
statutory procedure than would otherwise be applied to any other order on
the same matter unless otherwise provided by the applicable law. In the
case at bar, the applicable statutory provision is Section 16(c) of the Public
Service Act which provides:
 "Section 16. Proceedings of the Commission, upon notice and
hearing. — The Commission shall have power, upon proper notice and
hearing in accordance with the rules and provisions of this Act,
subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, . . . which shall be
imposed, observed and followed thereafter by any public
service; . . . ."

There is no reason to assume that the aforesaid provision does not apply to
respondent NTC, there being no limiting, excepting, or saving provisions to
the contrary in Executive Orders Nos. 546 and 196.
It is thus clear that with regard to rate-fixing, respondent has no authority
to make such order without first giving petitioner a hearing, whether the
order be temporary or permanent, and it is immaterial whether the same is
made upon a complaint, a summary investigation, or upon the commission's
own motion as in the present case. That such a hearing is required is
evident in respondents' order of September 16, 1987 in NTC Case No. 8794
which granted PHILCOMSAT a provisional authority "to continue operating
its existing facilities, to render the services it presently offers, and to
charge the rates as reduced by them" under the condition that "(s)ubject to
hearing and the final consideration of the merit of this application, the
Commission may modify, revise or amend the rates . . .." 12
While it may be true that for purposes of rate-fixing respondents may have
other sources of information or data, still, since a hearing is essential,
respondent NTC should act solely on the basis of the evidence before it and
not on knowledge or information otherwise acquired by it but which is not
offered in evidence or, even if so adduced, petitioner was given no
opportunity to controvert.
Again, the order requires the new reduced rates to be made effective on a
specified date. It becomes a final legislative act as to the period during
which it has to remain in force pending the final determination of the
case. 13 An order of respondent NTC prescribing reduced rates, even for a
temporary period, could be unjust, unreasonable or even confiscatory,
especially if the rates are unreasonably low, since the utility permanently
loses its just revenue during the prescribed period. In fact, such order is in
effect final insofar as the revenue during the period covered by the order is
concerned. Upon a showing, therefore, that the order requiring a reduced
rate is confiscatory, and will unduly deprive petitioner of a reasonable
return upon its property, a declaration of its nullity becomes inductible,
which brings us to the issue on substantive due process.
III. Petitioner contends that the rate reduction is confiscatory in that its
implementation would virtually result in a cessation of its operations and
eventual closure of business. On the other hand, respondents assert that
since petitioner is operating its communications satellite facilities through
a legislative franchise, as such grantee it has no vested right therein. What
it has is merely a privilege or license which may be revoked at will by the
State at any time without necessarily violating any vested property right of
herein petitioner. While petitioner concedes this thesis of respondent, it
counters that the withdrawal of such privilege should nevertheless be
neither whimsical nor arbitrary, but it must be fair and reasonable.
There is no question that petitioner is a mere grantee of a legislative
franchise which is subject to amendment, alteration, or repeal by Congress
when the common good so requires. 14 Apparently, therefore, such grant
cannot be unilaterally revoked absent a showing that the termination of the
operation of said utility is required by the common good.
The rule is that the power of the State to regulate the conduct and
business of public utilities is limited by the consideration that it is not the
owner of the property of the utility, or clothed with the general power of
management incident to ownership, since the private right of ownership to
such property remains and is not to be destroyed by the regulatory power.
The power to regulate is not the power to destroy useful and harmless
enterprises, but is the power to protect, foster, promote, preserve, and
control with due regard for the interest, first and foremost, of the public,
then of the utility and of its patrons. Any regulation, therefore, which
operates as an effective confiscation of private property or constitutes an
arbitrary or unreasonable infringement of property rights is void, because it
is repugnant to the constitutional guaranties of due process and equal
protection of the laws. 15
Hence, the inherent power and authority of the State, or its authorized
agent, to regulate the rates charged by public utilities should be subject
always to the requirement that the rates so fixed shall be reasonable and
just. A commission has no power to fix rates which are unreasonable or to
regulate them arbitrarily. This basic requirement of reasonableness
comprehends such rates which must not be so low as to be confiscatory, or
too high as to be oppressive. 16
What is a just and reasonable rate is not a question of formula but of sound
business judgment based upon the evidence; 17 it is a question of fact
calling for the exercise of discretion, good sense, and a fair, enlightened
and independent judgment 18 In determining whether a rate is confiscatory,
it is essential also to consider the given situation, requirements and
opportunities of the utility. A method often employed in determining
reasonableness is the fair return upon the value of the property to the
public utility. Competition is also a very important factor in determining the
reasonableness of rates since a carrier is allowed to make such rates as
are necessary to meet competition. 19
A cursory perusal of the assailed order reveals that the rate reduction is
solely and primarily based on the initial evaluation made on the financial
statements of petitioner, contrary to respondent NTC's allegation that it
has several other sources of information without, however, divulging such
sources. Furthermore, it did not as much as make an attempt to elaborate
on how it arrived at the prescribed rates. It just perfunctorily declared that
based on the financial statements, there is merit for a rate reduction
without any elucidation on what implications and conclusions were
necessarily inferred by it from said statements. Nor did it deign to explain
how the data reflected in the financial statements influenced its decision
to impose a rate reduction.
On the other hand, petitioner may likely suffer a severe drawback, with the
consequent detriment to the public service, should the order of respondent
NTC turn out to be unreasonable and improvident. The business in which
petitioner is engaged is unique in that its machinery and equipment have
always to be taken in relation to the equipment on the other end of the
transmission arrangement. Any lack, aging, acquisition, rehabilitation, or
refurbishment of machinery and equipment necessarily entails a major
adjustment or innovation on the business of petitioner. As pointed out by
petitioner, any change in the sending end abroad has to be matched with
the corresponding change in the receiving end in the Philippines.
conversely, any change in the receiving end abroad has to be matched with
the corresponding change in the sending end in the Philippines. An inability
on the part of petitioner to meet the variegations demanded by technology
could result in a deterioration or total failure of the service of satellite
communications. cdll

At present, petitioner is engaged in several projects aimed at refurbishing,

rehabilitating, and renewing its machinery and equipment in order to keep
up with the continuing changes of the times and to maintain its facilities at
a competitive level with the technological advances abroad. These
projected undertakings were formulated on the premise that rates are
maintained at their present or at reasonable levels. Hence, an undue
reduction thereof may practically lead to a cessation of its business. While
we concede the primacy of the public interest in an adequate and efficient
service, the same is not necessarily to be equated with reduced rates.
Reasonableness in the rates assumes that the same is fair to both the
public utility and the consumer.cdll

Consequently, we hold that the challenged order, particularly on the issue

of rates provided therein, being violative of the due process clause is void
and should be nullified. Respondents should now proceed, as they should
heretofore have done, with the hearing and determination of petitioner's
pending application for a certificate of public convenience and necessity
and in which proceeding the subject of rates involved in the present
controversy, as well as other matters involved in said application, may be
duly adjudicated with reasonable dispatch and with due observance or our
pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of respondents,
dated September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The
temporary restraining order issued under our resolution of September 13,
1988, as specifically directed against the aforesaid order of respondents on
the matter of existing rates on petitioner's present authorized services, is
hereby made permanent.
SO ORDERED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Bidin, Sarmiento, Cortés, Griño-Aquino and Medialdea, JJ.,concur.
Padilla, J., took no part.
(Philippine Communications Satellite Corp. v. Alcuaz, G.R. No. 84818,
|||

[December 18, 1989], 259 PHIL 707-725)

 EN BANC

[G.R. No. 46496. February 27, 1940.]

ANG TIBAY, represented by TORIBIO TEODORO, manager and

proprietor, and NATIONAL WORKERS'
BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL
RELATIONS and NATIONAL LABOR UNION, INC.,respondents.

Solicitor-General Ozaeta and Assistant Attorney Barcelona for the

Court of Industrial Relations.
Antonio D. Paguia; for National Labor Union.
Claro M. Recto; for petitioner "Ang Tibay".
Jose M. Casal; for National Workers' Brotherhood.

SYLLABUS

1. COURT OF INDUSTRIAL RELATIONS; POWER. — The nature of the

Court of Industrial Relations and of its power is extensively discussed in
the decision.
2. ID.; ID.; TECHNICAL RULES OF PROCEDURE; DUE PROCESS OF
LAW. — The Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and Commonwealth Act No. 103 requires it
to act according to justice and equity and substantial merits of the case,
without regard to technicalities or legal evidence but may inform its
mind in such manner as it may deem just and equitable (Goseco vs.
Court of Industrial Relations et al., G. R. No. 46673). The fact, however,
that the Court of Industrial Relations may be said to be free from the
rigidity of certain procedural requirements does not mean that it can, in
justiciable cases coming before it, entirely ignore or disregard the
fundamental and essential requirements of due process in trials and
investigations of an administrative character.
3. ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS. — There are
cardinal primary rights which must be respected even in proceedings of
this character. The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present his own
case and submit evidence in support thereof. Not only must the party be
given an opportunity to present his case and to adduce evidence tending
to establish the rights which he asserts but the tribunal must
consider the evidence presented. While the duty to deliberate does not
impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support its
decision. Not only must there be some evidence to support a finding or
conclusion, but the evidence must be substantial. The decision must be
rendered on the evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected. The Court of
Industrial Relations or any of its judges, therefore, must act on its or his
own independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a
decision. The Court of Industrial Relations should, in all controvercial
 questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.
4. ID.; ID. ; ID. ; ID. ; ID.; CASE AT BAR ; NEW TRIAL GRANTED. — In
the light of the foregoing fundamental principles, it is sufficient to
observe here that, except as to the alleged agreement between the Ang
Tibay and the National Workers' Brotherhood (appendix A), the record is
barren and does not satisfy the thirst for a factual basis upon which to
predicate, in a rational way, a conclusion of law. This result, however,
does not now preclude the concession of a new trial prayed for by the
respondent National Labor Union, Inc. The interest of justice would be
better served if the movant is given opportunity to present at the hearing
the documents referred to in his motion and such other evidence as may
be relevant to the main issue involved. The legislation which created the
Court of Industrial Relations and under which it acts is new. The failure
to grasp the fundamental issue involved is not entirely attributable to the
parties adversely affected by the result. Accordingly, the motion for a
new trial should be, and the same is hereby, granted, and the entire
record of this' case shall be remanded to the Court of Industrial
Relations, with instruction that it re-open the case, receive all such
evidence as may be relevant, and otherwise proceed in accordance with
the requirements set forth in the decision.

DECISION

LAUREL, J :p

The Solicitor-General in behalf of the respondent Court of Industrial

Relations in the above-entitled case has filed a motion for
reconsideration and moves that, for the reasons stated in his motion, we
reconsider the following legal conclusions of the majority opinion of this
Court:
"1. Que un contrato de trabajo, asi individual como colectivo,
sin termino fijo de duracion o que no sea para una determinada,
termina o bien por voluntad de cualquiera de las partes o cada vez
que llega el plazo fijado para el pago de los salarios segun costumbre
en la localidad o cuando se termine la obra;
"2. Que los obreros de una empresa fabril, que han celebrado
contrato, ya individual ya colectivamente, con ella, sin tiempo fijo, y
que se han visto obligados a cesar en sus trabajos por haberse
declarado paro forzoso en la fabrica en la cual trabajan, dejan de ser
empleados u obreros de la misma;
"3. Que un patrono o sociedad que ha celebrado un contrato
colectivo de trabajo con sus obreros sin tiempo fijo de duracion y sin
ser para una obra determinada y que se niega a readmitir a dichos
obreros que cesaron como consecuencia de un paro forzoso, no es
culpable de practica injusta ni incurre en la sancion penal del
articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a
readmitir se deba a que dichos obreros pertenecen a un determinado
organismo obrero, puesto que tales ya han dejado de ser empleados
suyos por terminacion del contrato en virtud del paro."
 The respondent National Labor Union, Inc., on the other hand, prays
for the vacation of the judgment rendered by the majority of this Court
and the remanding of the case to the Court of Industrial Relations for a
new trial, and avers:
"1. That Toribio Teodoro's claim that on September 26,1938,
there was shortage of leather soles in ANG TIBAY making it
necessary for him to temporarily lay off the members of the National
Labor Union Inc., is entirely false and unsupported by the records of
the Bureau of Customs and the Books of Accounts of native dealers
in leather.
"2. That the supposed lack of leather materials claimed by
Toribio Teodoro was but a scheme adopted to systematically
discharge all the members of the National Labor Union, Inc., from
work.
"3. That Toribio Teodoro's letter to the Philippine Army dated
September 29, 1938, (re supposed delay of leather soles from the
States) was but a scheme to systematically prevent the forfeiture of
this bond despite the breach of his CONTRACT with the Philippine
Army.
"4. That the National Workers' Brotherhood of ANG TIBAY is a
company or employer union dominated by Toribio Teodoro, the
existence and functions of which are illegal. (281 U. S., 548,
petitioner's printed memorandum, p. 25.)
"5. That in the exercise by the laborers of their rights to
collective bargaining, majority rule and elective representation are
highly essential and indispensable. ( Sections 2 and
5, Commonwealth Act No. 213.)
"6. That the century provisions of the Civil Code which had been
(the) principal source of dissensions and continuous civil war in
Spain cannot and should not be made applicable in interpreting and
applying the salutary provisions of a modern labor legislation of
American origin where industrial peace has always been the rule.
"7. That the employer Toribio Teodoro was guilty of unfair labor
practice for discriminating against the National Labor Union, Inc., and
unjustly favoring the National Workers' Brotherhood.
"8. That the exhibits hereto attached are so inaccessible to the
respondents that even with the exercise of due diligence they could
not be expected to have obtained them and offered as evidence in
the Court of Industrial Relations.
"9. That the attached documents and exhibits are of such far-
reaching importance and effect that their admission would
necessarily mean the modification and reversal of the judgment
rendered herein."
The petitioner, Ang Tibay, has filed an opposition both to the motion
for reconsideration of the respondent Court of Industrial Relations and to
the motion for new trial of the respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein- after
stated with reference to the motion for a new trial of the respondent
National Labor Union, Inc., we are of the opinion that it is not necessary
to pass upon the motion for reconsideration of the Solicitor-General. We
shall proceed to dispose of the motion for new trial of the respondent
labor union. Before doing this, however, we deem it necessary, in the
interest of orderly procedure in cases of this nature, to make several
observations regarding the nature of the powers of the Court of
Industrial Relations and emphasize certain guiding principles which
should be observed in the trial of cases brought before it. We have re-
examined the entire record of the proceedings had before the Court of
Industrial Relations in this case, and we have found no substantial
evidence to indicate that the exclusion of the 89 laborers here was due
to their union affiliation or activity. The whole transcript taken contains
what transpired during the hearing and is more of a record of
contradictory and conflicting statements of opposing counsel, with
sporadic conclusion drawn to suit their own views. It is evident that
these statements and expressions of views of counsel have no
evidentiary value.
The Court of Industrial Relations is a special court whose functions
are specifically stated in the law of its creation (Commonwealth Act No.
103). It is more an administrative board than a part of the integrated
judicial system of the nation. It is not intended to be a mere receptive
organ of the Government. Unlike a court of justice which is essentially
passive, acting only when its jurisdiction is invoked and deciding only
cases that are presented to it by the parties litigant, the function of the
Court of Industrial Relations, as will appear from perusal of its organic
law, is more active, affirmative and dynamic. It not only exercises
judicial or quasijudicial functions in the determination of disputes
between employers and employees but its functions are far more
comprehensive and extensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any question,
matter controversy or dispute arising between, and/or affecting,
employers and employees or laborers, and landlords and tenants or farm-
laborers, and regulate the relations between them, subject to, and in
accordance with, the provisions of Commonwealth Act No. 103 (section
1). It shall take cognizance for purposes of prevention, arbitration,
decision and settlement, of any industrial or agricultural dispute causing
or likely to cause a strike or lockout, arising from differences as regards
wageshares or compensation, hours of labor or conditions of tenancy or
employment, between employers and employees or laborers and between
landlords and tenants or farm-laborers, provided that the number of
employees, laborers or tenants or farm-laborers involved exceeds thirty,
and such industrial or agricultural dispute is submitted to the Court by
the Secretary of Labor or by any or both of the parties to the controversy
and certified by the Secretary of Labor as existing and proper to be
death with by the Court for the sake of public interest. (Section A, ibid.)
It shall, before hearing the dispute and in the course of such hearing,
endeavor to reconcile the parties and induce them to settle the dispute
by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by
the President of the Philippines, it shall investigate and study all
pertinent facts related to the industry concerned or to the industries
established in a designated locality, with a view to determining the
necessity and fairness of fixing and adopting for such industry or locality
a minimum wage or share of laborers or tenants, or a maximum "canon"
or rental to be paid by the "inquilinos" or tenants or lessees to
landowners. (Section 5, ibid.) In fine, it may appeal to voluntary
arbitration in the settlement of industrial disputes; may employ
mediation or conciliation for that purpose, or recur to the more effective
system of official investigation and compulsory arbitration in order to
determine specific controversies between labor and capital in industry
and in agriculture. There is in reality here a mingling of executive and
judicial functions, which is a departure from the rigid doctrine of the
separation of governmental powers.

In the case of Goseco vs. Court of Industrial Relations et al., G. R.

No. 46673, promulgated September 13, 1939, we had occasion to point
out that the Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Act requires it to "act according to
justice and equity and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any technical
rules of legal evidence but may inform its mind in such manner as it may
deem just and equitable." (Section 20, Commonwealth Act No. 103.) It
shall not be restricted to the specific relief claimed or demands made by
the parties to the industrial or agricultural dispute, but may include in
the award, order or decision any matter or determination which may be
deemed necessary or expedient for the purpose of settling the dispute or
of preventing further industrial or agricultural disputes. (Section 13, ibid.)
And in the light of this legislative policy, appeals to this Court have been
especially regulated by the rules recently promulgated by this Court to
carry into effect the avowed legislative purpose. The fact, however, that
the Court of Industrial Relations may be said to be free from the rigidity
of certain procedural requirements does not mean that it can, in
justiciable cases coming before it, entirely ignore or disregard the
fundamental and essential requirements of due Process in trials and
investigations of an administrative character. There are cardinal primary
rights which must be respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing which includes
the right of the party interested or affected to present his own case and
submit evidence in support thereof. In the language of Chief Justice
Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed
1129, "the liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play."
(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented. (Chief
Justice Hughes in Morgan v. U. S. 298 U. S. 468, 56 S. Ct. 906, 80 Law. ed.
1288.) In the language of this Court in Edwards vs. McCoy, 22 Phil., 598,
"the right to adduce evidence, without the corresponding duty on the
part of the board to consider it, is vain. Such right is conspicuously futile
if the person or persons to whom the evidence is presented can thrust it
aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, a place when directly
attached." (Edwards vs. McCoy, supra.) This principle emanates from the
more fundamental principle that the genius of constitutional government
is contrary to the vesting of unlimited power anywhere. Law is both a
grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G. R. No. 45844, promulgated
November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia & Maryland Coach Co. v. National
Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648, 650, 81 Law ed
965.) Substantial evidence is more than a mere scintilla It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."
(Appalachian Electric Power v. National Labor Relations Board, 4
Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson
Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v. National
Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides
that 'the rules of evidence prevailing in courts of law and equity shall not
be controlling.' The obvious purpose of this and similar provisions is to
free administrative boards from the compulsion of technical rules so that
the mere admission of matter which would be deemed incompetent in
judicial proceedings would not invalidate the administrative order.
(Interstate Commerce Commission v. Baird, 194 U. S. 25, 44, 24 S. Ct.
563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville
& Nashville R. Co., 227 U. S. 88, 93, 33 S. Ct. 185, 187, 57 Law. ed. 431;
United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct.
565, 569, 68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U.
S. 420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a
desirable flexibility in administrative procedure does not go so far as to
justify orders without a basis in evidence having rational probative force.
Mere uncorroborated hearsay or rumor does not constitute substantial
evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59
S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties
affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U. S.
88, 33 S. Ct. 185, 57 Law. ed. 431.)Only by confining the administrative
tribunal to the evidence disclosed to the parties, can the latter be
protected in their right to know and meet the case against them. It
should not, however, detract from their duty actively to see that the law
is enforced, and for that purpose, to use the authorized legal methods of
securing evidence and informing itself of facts material and relevant to
the controversy. Boards of inquiry may be appointed for the purpose of
investigating and determining the facts in any given case, but their
report and decision are only advisory. (Section 9, Commonwealth Act No.
103.) The Court of Industrial Relations may refer any industrial or
agricultural dispute of any matter under its consideration or advisement
to a local board of inquiry, a provincial fiscal, a justice of the peace or
any public official in any part of the Philippines for investigation, report
and recommendation, and may delegate to such board or public official
such powers and functions as the said Court of Industrial Relations may
deem necessary, but such delegation shall not affect the exercise of the
Court itself of any of its powers (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore,
must act on its or his own independent consideration of the law and
facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. It may be that the volume of work is
such that it is literally impossible for the titular heads of the Court of
Industrial Relations personally to decide all controversies coming before
them. In the United States the difficulty is solved with the enactment of
statutory authority authorizing examiners or other subordinates to
 render final decision, with right to appeal to board or commission, but in
our case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in such a manner that the parties to the
proceeding can know the vario issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.
In the light of the foregoing fundamental principles, it is sufficient
to observe here that, except as to the alleged agreement between the
Ang Tibay and the National Workers' Brotherhood (appendix A), the
record is barren and does not satisfy the thirst for a factual basis upon
which to predicate, in a rational way, a conclusion of law.
This result, however, does not now preclude the concession of a
new trial prayed for by the respondent National Labor Union, Inc. In the
portion of the petition hereinabove quoted of the National Labor Union,
Inc., it is alleged that "the supposed lack of leather material claimed by
Toribio Teodoro was but a scheme adopted to systematically discharge
all the members of the National Labor Union, Inc., from work" and this
averment is desired to be proved by the petitioner with the "records of
the Bureau of Customs and the Books of Accounts of native dealers in
leather"; that "the National Workers' Brotherhood Union of Ang Tibay is a
company or employer union dominated by Toribio Teodoro, the existence
and functions of which are illegal." Petitioner further alleges under oath
that the exhibits attached to the petition to prove his substantial
averments "are so inaccessible to the respondents that even with the
exercise of due diligence they could not be expected to have obtained
them and offered as evidence in the Court of Industrial Relations", and
that the documents attached to the petition "are of such far reaching
importance and effect that their admission would necessarily mean the
modification and reversal of the judgment rendered therein." We have
considered the reply of Ang Tibay and its arguments against the petition.
By and large, after considerable discussion, we have come to the
conclusion that the interest of justice would be better served if the
movant is given opportunity to present at the hearing the documents
referred to in his motion and such other evidence as may be relevant to
the main issue involved. The legislation which created the Court of
Industrial Relations and under which it acts is new. The failure to grasp
the fundamental issue involved is not entirely attributable to the parties
adversely affected by the result. Accordingly, the motion for a new trial
should be, and the same is hereby granted, and the entire record of this
case shall be remanded to the Court of Industrial Relations, with
instruction that it reopen the case, receive all such evidence as may be
relevant, and otherwise proceed in accordance with the requirements
set forth hereinabove. So ordered.

Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran,

JJ., concur.

(Ang Tibay v. Court of Industrial Relations, G.R. No. 46496, [February 27,
|||

1940], 69 PHIL 635-645)

 EN BANC

[G.R. No. 99327. May 27, 1993.]

ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS,

S.J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO
KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL
ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE
CLARO TESORO, RAMON CAGUIOA and RAMON
ERENETA, petitioners, vs. HON. IGNACIO M. CAPULONG,
Presiding Judge of the RTC-Makati, Br. 134 ZOSIMO MENDOZA,
JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO
SABBAN, DALMACIO LIM, JR., MANUEL ESCALONA and JUDE
FERNANDEZ, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenez for

petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner
Cynthia Roxas-del Castillo.
Fabregas, Calida & Remollo for private respondents.

SYLLABUS

1. POLITICAL LAW; DUE PROCESS; REQUIREMENTS; MINIMUM STANDARD

TO BE SATISFIED IN IMPOSING DISCIPLINARY SANCTION BY AN ACADEMIC
INSTITUTION. — Corollary to respondent students' contention of denial of
due process is their argument that it is the Ang Tibay case [69 Phil. 635
(1940)] and not the Guzman case [142 SCRA 699], which is applicable in the
case at bar. Though both cases essentially deal with the requirements of
due process, the Guzman case is more apropos to the instant case, since
the latter deals specifically with the minimum standards to be satisfied in
the imposition of disciplinary sanctions in academic institutions, such as
petitioner university herein, thus: "(1) the students must be informed in
writing of the nature and cause of any accusation against them; (2) that
they shall have the right to answer the charges against them with the
assistance of counsel, if desired; (3) they shall be informed of the evidence
against them; (4) they shall have the right to adduce evidence in their own
behalf; and (5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and
decide the case."
2. ID.; ID.; ID.; MINIMUM STANDARD SATISFIED IN CASE AT BAR. — In view
of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of
the Ateneo Law School, notified and required respondent students on
February 11, 1991 to submit within twenty-four hours their written
statement on the incident, the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
charges. While some of the students mentioned in the February 11, 1991
notice duly submitted written statements, the others failed to do so. Thus,
the latter were granted an extension of up to February 18, 1991 to file their
statements. Indubitably, the nature and cause of the accusation were
adequately spelled out in petitioners' notices dated February 14 and 20,
1991. It is to be noted that the February 20, 1991 letter which quoted Rule
No. 3 of its Rules of Discipline as contained in the Ateneo Law School
Catalogue was addressed individually to respondent students. Petitioners'
notices/letters dated February 11, February 14 and 20 clearly show that
respondent students were given ample opportunity to adduce evidence in
their behalf and to answer the charges leveled against them. The requisite
assistance of counsel was met when, from the very start of the
investigations before the Joint Administration-Faculty-Student Committee,
the law firm of Gonzales Batiller and Bilog and Associates put in its
appearance and filed pleadings in behalf of respondent students.
3. ID.; ID.; DISCIPLINARY CASES INVOLVING STUDENTS, ADMINISTRATIVE
IN NATURE; RIGHT TO CROSS EXAMINE, NOT INVOLVED. — Respondent
students may not use the argument that since they were not accorded the
opportunity to see and examine the written statements which became the
basis of petitioners' February 14, 1991 order, they were denied procedural
due process. Granting that they were denied such opportunity, the same
may not be said to detract from the observance of due process, for
disciplinary cases involving students need not necessarily include the right
to cross examination. An administrative proceeding conducted to
investigate students' participation in a hazing activity need not be clothed
with the attributes of a judicial proceeding. A closer examination of the
March 2, 1991 hearing which characterized the rules on the investigation as
being summary in nature and that respondent students have no right to
examine affiants-neophytes, reveals that this is but a reiteration of our
previous ruling in Alcuaz vs. PSBA, Q.C. Branch, 161 SCRA 20.
4. ID.; ID.; ID.; PROOF BEYOND REASONABLE DOUBT, NOT REQUIRED. —
With regard to the charge of hazing, respondent students fault petitioners
for not explicitly defining the word "hazing" and allege that there is no
proof that they were furnished copies of the 1990-91 Ateneo Law School
Catalogue which prohibits hazing. Such flawed sophistry is not worthy of
students who aspire to be future members of the Bar. It cannot be over-
emphasized that the charge filed before the Joint Administration-Faculty-
Student Investigating Committee and the Disciplinary Board is not a
criminal case requiring proof beyond reasonable doubt but is merely
administrative in character. As such, it is not subject to the rigorous
requirements of criminal due process, particularly with respect to the
specification of the charge involved. As we have had occasion to declare in
previous cases of a similar nature, due process in disciplinary cases
involving students does not entail proceedings and hearings identical to
those prescribed for actions and proceedings in courts of
justice. 34Accordingly, disciplinary charges against a student need not be
drawn with the precision of a criminal information or complaint. Having
given prior notice to the students involved that "hazing" which is not
defined in the School Catalogue shall be defined in accordance with Senate
Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina, petitioners
have said what needs to be said. We deem this sufficient for purposes of
the investigation under scrutiny.
5. ID.; ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE
REMEDIES, EXCEPTION; CASE AT BAR. — It is accepted legal doctrine that
an exception to the doctrine of exhaustion of remedies is when the case
involves a question of law, as in this case, where the issue is whether or
not respondent students have been afforded procedural due process prior
to their dismissal from petitioner university.
6. ID.; ACADEMIC FREEDOM CONSTRUED; CASE AT BAR. — At this juncture,
it would be meet to recall the essential freedoms subsumed by Justice
Felix Frankfurter in the term "academic freedom" cited in the case
of Sweezy v. New Hampshire, 37 thus: (1) who may teach; (2) what may be
taught; (3) how it shall be taught; and (4) who may be admitted to study.
"Academic freedom", the term as it evolved to describe the emerging rights
related to intellectual liberty, has traditionally been associated with
freedom of thought, speech, expression and the press; in other words, with
the right of individuals in university communities, such as professors,
researchers and administrators, to investigate, pursue, discuss and, in the
immortal words of Socrates, "to follow the argument wherever it may lead,"
free from internal and external interference or pressure. But obviously, its
optimum impact is best realized where the freedom is exercised judiciously
and does not degenerate into unbridled license. Early cases on this
individual aspect of academic freedom have stressed the need for assuring
to such individuals a measure of independence through the guarantees of
autonomy and security of tenure. The components of this aspect of
academic freedom have been categorized under the areas of: (1) who may
teach and (2) how to teach. It is to be realized that this individual aspect of
academic freedom could have developed only pari passu with its
institutional counterpart. As corporate entities, educational institutions of
higher learning are inherently endowed with the right to establish their
policies, academic and otherwise, unhampered by external controls or
pressure. In the Frankfurter formulation, this is articulated in the areas of:
(1) what shall be taught, e.g., the curriculum and (2) who may be admitted
to study. In an attempt to give an explicit definition with an expanded
coverage, the Commissioners of the Constitutional Commission of 1986
came up with this formulation: "Academic freedom shall be enjoyed by
students, by teachers, and by researchers." After protracted debate and
ringing speeches, the final version which was none too different from the
way it was couched in the previous two (2) Constitutions, as found in
Article XIV, Section 5 (2) states: "Academic freedom shall be enjoyed in all
institutions of higher learning." In anticipation of the question as to
whether and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since academic
freedom is a dynamic concept, we want to expand the frontiers of freedom,
especially in education, therefore, we shall leave it to the courts to develop
further the parameters of academic freedom." While under the Education
Act of 1982, students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the established
academic and disciplinary standards laid down by the academic institution.
[Section 9 (2) of Batas Pambansa Blg. 232, effective September 11, 1982].
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students. This
right . . . extends as well to parents . . . as parents are under a social and
moral (if not legal) obligation, individually and collectively, to assist and
cooperate with the schools." (Yap Chin Fah v. Court of Appeals [Resolution],
G.R. No. 90063, December 12, 1989) Such rules are "incident to the very
object of incorporation and indispensable to the successful management of
the college. The rules may include those governing student discipline."
Going a step further, the establishment of rules governing university-
student relations, particularly those pertaining to student discipline, may
be regarded as vital, not merely to the smooth and efficient operation of
the institution, but to its very survival.

7. REMEDIAL LAW; PROVISIONAL REMEDIES; TEMPORARY RESTRAINING

ORDER; PROPER ISSUANCE THEREOF IN CASE AT BAR. — respondent
students argue that we erred in issuing a Temporary Restraining Order
since petitioners do not stand to suffer irreparable damage in the event
that private respondents are allowed to re-enroll. No one can be so myopic
as to doubt that the immediate reinstatement of respondent students who
have been investigated and found by the Disciplinary Board to have violated
petitioner university's disciplinary rules and standards will certainly
undermine the authority of the administration of the school. This we would
be most loathe to do.

DECISION

ROMERO, J : p

In 1975, the Court was confronted with a mandamus proceeding to compel

the Faculty Admission Committee of the Loyola School of Theology, a
religious seminary which has a working arrangement with the Ateneo de
Manila University regarding accreditation of common students, to allow
petitioner who had taken some courses therein for credit during summer, to
continue her studies. 1 Squarely meeting the issue, we dismissed the
petition on the ground that students in the position of petitioner possess,
not a right, but a privilege, to be admitted to the institution. Not having
satisfied the prime and indispensable requisite of a mandamus proceeding
since there is no duty, much less a clear duty, on the part of the respondent
to admit the petitioner, the petition did not prosper.
In support of its decision, the Court invoked academic freedom of
institutions of higher learning, as recognized by the Constitution, the
concept encompassing the right of a school to choose its students.
Eighteen (18) years later, the right of a University to refuse admittance to
its students, this time in Ateneo de Manila University proper, is again
challenged.
Whereas, in the Garcia case referred to in the opening paragraph, the
individual concerned was not a regular student, the respondents in the
case at bar, having been previously enrolled in the University, seek re-
admission. Moreover, in the earlier case, the petitioner was refused
admittance, not on such considerations as personality traits and character
orientation, or even inability to meet the institution's academic or
intellectual standards, but because of her behavior in the classroom. The
school pointedly informed her that ". . . it would seem to be in your best
interest to work with a Faculty that is more compatible with your
orientations."
On the other hand, students who are now being refused admission into
petitioner University have been found guilty of violating Rule No. 3 of the
Ateneo Law School Rules on Discipline which prohibits participation in
hazing activities. The case attracted much publicity due to the death of one
of the neophytes and serious physical injuries inflicted on another.
Herein lies an opportunity for the Court to add another dimension to the
concept of academic freedom of institutions of higher learning, this time a
case fraught with social and emotional overtones.
The facts which gave rise to this case which is far from novel, are as
follows:
As a requisite to membership, the Aquila Legis, a fraternity organized in the
Ateneo Law School, held its initiation rites on February 8, 9 and 10, 1991,
for students interested in joining its ranks. As a result of such initiation
rites, Leonardo "Lennie" H. Villa, a first year student of petitioner
university, died of serious physical injuries at the Chinese General Hospital
on February 10, 1991. He was not the lone victim, though, for another
freshman by the name of Bienvenido Marquez was also hospitalized at the
Capitol Medical Center for acute renal failure occasioned by the serious
physical injuries inflicted upon him on the same occasion.
In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo
created a Joint Administration-Faculty-Student Investigating
Committee 2 which was tasked to investigate and submit a report within 72
hours on the circumstances surrounding the death of Lennie Villa. Said
notice also required respondent students to submit their written
statements within twenty-four (24) hours from receipt. Although respondent
students received a copy of the written notice, they failed to file a reply. In
the meantime, they were placed on preventive suspension. 3 Through their
respective counsels, they requested copies of the charges and pertinent
documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-Faculty-
Student Investigating Committee, after receiving the written statements
and hearing the testimonies of several witnesses, found a prima facie case
against respondent students for violation of Rule 3 of the Law School
Catalogue entitled "Discipline." 4
Respondent students were then required to file their written answers to the
formal charge on or before February 18, 1991; otherwise, they would be
deemed to have waived their right to present their defenses.
On February 20, 1991, petitioner Dean created a Disciplinary Board
composed of petitioners Judge Ruperto Kapunan, Justice Venicio Escolin,
Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand Casis, to hear
the charges against respondent students. Cdpr

In a letter dated February 20, 1991, respondent students were informed

that they had violated Rule No. 3 of the Rules on Discipline contained in the
Law School Catalogue. Said letter also states: "The complaint/charge
against you arose from participation in acts of hazing committed during the
Aquila Legis initiations held on February 8-10, 1991. The evidence against
you consist of testimonies of students, showing your participation in acts
prohibited by the School regulations." Finally, it ordered respondent
students to file their written answers to the above charge on or before
February 22, 1991, otherwise they would be deemed to have waive their
defense. 5
In a motion dated February 21, 1991, respondent students, through counsel,
requested that the investigation against them be held in abeyance, pending
action on their request for copies of the evidence against them. 6
Respondent students were then directed by the Board to appear before it at
a hearing on February 28, 1991 to clarify their answers with regard to the
charges filed by the investigating committee for violation of Rule No. 3.
However, in a letter to petitioners dated February 27, 1991, counsel for
respondent students moved to postpone the hearing from February 28, 1991
to March 1, 1991. 7
Subsequently, respondent students were directed to appear on March 2,
1991 for clarificatory questions. 8 They were also informed that:
a) The proceedings will be summary in nature in accordance with the
rules laid down in the case of Guzman vs. National University; 9
b) Petitioners have no right to cross-examine the affiants-neophytes;
c) Hazing which is not defined in the School catalogue shall be
defined in accordance with the proposed bill of Sen. Jose Lina,
Senate Bill No. 3815;
d) The Board will take into consideration the degree of participation
of the petitioners in the alleged hazing incident in imposing the
penalty;
e) The Decision of the Board shall be appealable to the President of
the University, i.e. Respondent Joaquin Bernas S. J.

On March 5, 1991, petitioner Bernas wrote Dean del Castillo that, "in cases
where the Disciplinary Board is not prepared to impose the penalty of
dismissal, I would prefer that the Board leave the decision on the penalty to
the Administration so that this case be decided not just on the Law School
level but also on the University level." 10
In a resolution dated March 9, 1991, the Board found respondent students
guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline
which prohibits participation in hazing activities. The Board found that
respondent students acted as master auxiliaries or "auxies" during the
initiation rites of Aquila Legis, and exercised the "auxies privilege," which
allows them to participate in the physical hazing. Although respondent
students claim that they were there to assist and attend to the needs of the
neophytes, actually they were assigned a definite supportive role to play in
the organized activity. Their guilt was heightened by the fact that they
made no effort to prevent the infliction of further physical punishment on
the neophytes under their care. The Board considered respondent students
part and parcel of the integral process of hazing. In conclusion, the Board
pronounced respondents guilty of hazing, either by active participation or
through acquiescence. However, in view of the lack of unanimity among the
members of the Board on the penalty of dismissal, the Board left the
imposition of the penalty to the University Administration. 11 Petitioner
Dean del Castillo waived her prerogative to review the decision of the
Board and left to the President of the University the decision of whether to
expel respondent students or not.
Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G.
Bernas, as President of the Ateneo de Manila University, accepted the
factual findings of the Board, thus: "that as Master Auxiliaries they
exercised the 'auxie's privilege;' that even assuming that they did not lay
hands on the neophytes," respondent students are still guilty in accordance
with the principle that "where two or more persons act together in the
commission of a crime, whether they act through the physical volition of
one or of all, proceeding severally or collectively, each individual whose
will contributes to the wrongdoing is responsible for the whole." Fr. Bernas,
in describing the offense which led to the death of Leonardo Villa,
concluded that the "offense of the respondents can be characterized as
grave and serious, subversive of the goals of Christian education and
contrary to civilized behavior." Accordingly, he imposed the penalty of
dismissal on all respondent students. 12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr.

Bernas, 13 the Board excluded respondent students Abas and Mendoza from
the coverage of the resolution of March 10, 1991, inasmuch as at the time
the latter resolution was promulgated, neither had as yet submitted their
case to the Board. Said resolution also set the investigation of the two
students on March 21, 1991.
On March 18, 1991, respondent students filed with the Regional Trial Court
of Makati, a petition for certiorari, prohibition and mandamus with prayer
for temporary restraining order and preliminary injunction 14 alleging that
they were currently enrolled as students for the second semester of
schoolyear 1990-91. Unless a temporary restraining order is issued, they
would be prevented from taking their examinations. The petition principally
centered on the alleged lack of due process in their dismissal.
On the same day, Judge Madayag issued a temporary restraining order
enjoining petitioners from dismissing respondent students and stopping the
former from conducting hearings relative to the hazing incident. 15
Hearings in connection with the issuance of the temporary restraining
order were then held. On April 7, 1991, the temporary restraining order
issued on March 18, 1991 lapsed. Consequently, a day after the expiration
of the temporary restraining order, Dean del Castillo created a Special
Board composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and Ramon
Ereñeta to investigate the charges of hazing against respondent students
Abas and Mendoza.
Respondent students reacted immediately by filing a Supplemental Petition
of certiorari, prohibition and mandamus with prayer for a temporary
restraining order and preliminary injunction, to include the aforesaid
members of the Special Board, as additional respondents to the original
petition. 16
Petitioners moved to strike out the Supplemental Petition arguing that the
creation of the Special Board was totally unrelated to the original petition
which alleged lack of due process in the conduct of investigations by the
Disciplinary Board against respondent students; that a supplemental
petition cannot be admitted without the same being set for hearing and
that the supplemental petition for the issuance of a temporary restraining
order will, in effect, extend the previous restraining order beyond its
mandatory 20-day lifetime. 17 Acting on the urgent motion to admit the
supplemental petition with prayer for a temporary restraining order, Judge
Amin, as pairing judge of respondent Judge Capulong, granted respondent
students' prayer on April 10, 1991. 18
On May 17, 1991, respondent Judge ordered petitioners to reinstate
respondent students. Simultaneously, the court ordered petitioners to
conduct special examinations in lieu of the final examinations which
allegedly the students were not allowed to take, and enjoined them to
maintain the status quo with regard to the cases of Adel Abas and Zosimo
Mendoza pending final determination of the issues of the instant case.
Lastly, it directed respondent students to file a bond in the amount of
P50,000.00. 19
On the same date, May 17, 1991, the Special Board investigating petitioners
Abas and Mendoza concluded its investigation. On May 20, 1991, it imposed
the penalty of dismissal on respondent students Adel Abas and Zosimo
Mendoza and directed the dropping of their names from its roll of
students. 20
The following day or on May 21, 1991, respondent judge issued the writ of
preliminary injunction upon posting by respondent students of a bond dated
May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with prayer for
the issuance of a temporary restraining order questioning the order of
respondent judge reinstating respondent students dated May 17, 1991. On
May 30, 1991, this Court issued a temporary restraining order enjoining the
enforcement of the May 17, 1991 order of respondent judge. 21
In the case at bar, we come to grips with two relevant issues on academic
freedom, namely: (1) whether a school is within its rights in expelling
students from its academic community pursuant to its disciplinary rules
and moral standards; and (2) whether or not the penalty imposed by the
school administration is proper under the circumstances. Cdpr

We grant the petition and reverse the order of respondent judge ordering
readmission of respondent students. Respondent judge committed grave
abuse of discretion when he ruled that respondent students had been
denied due process in the investigation of the charges against them.
It is the threshold argument of respondent students that the decision of
petitioner Fr. Joaquin Bernas, S. J., then President of the Ateneo de Manila
University, to expel them was arrived at without affording them their right
to procedural due process. We are constrained to disagree as we find no
indication that such right has been violated. On the contrary, respondent
students' rights in a school disciplinary proceeding, as enunciated in the
cases of Guzman v. National University, 22 Alcuaz v PSBA, Q.C.
Branch 23 and Non v. Dames II 24 have been meticulously respected by
petitioners in the various investigative proceedings held before they were
expelled.
Corollary to their contention of denial of due process is their argument that
it is the Ang Tibay case 25 and not the Guzman case which is applicable in
the case at bar. Though both cases essentially deal with the requirements
of due process, the Guzman case is moreapropos to the instant case, since
the latter deals specifically with the minimum standards to be satisfied in
the imposition of disciplinary sanctions in academic institutions, such as
petitioner university herein, thus:
"(1) the students must be informed in writing of the nature and cause
of any accusation against them; (2) that they shall have the right to
answer the charges against them with the assistance of counsel, if
desired; (3) they shall be informed of the evidence against them; (4)
 they shall have the right to adduce evidence in their own behalf; and
(5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear
and decide the case." 26

It cannot seriously be asserted that the above requirements were not met.
When, in view of the death of Leonardo Villa, petitioner Cynthia del Castillo,
as Dean of the Ateneo Law School, notified and required respondent
students on February 11, 1991 to submit within twenty-four hours their
written statement on the incident, 27 the records show that instead of filing
a reply, respondent students requested through their counsel, copies of the
charges. 28 While some of the students mentioned in the February 11, 1991
notice duly submitted written statements, the others failed to do so. Thus,
the latter were granted an extension of up to February 18, 1991 to file their
statements. 29
Indubitably, the nature and cause of the accusation were adequately
spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is to
be noted that the February 20, 1991 letter which quoted Rule No. 3 of its
Rules of Discipline as contained in the Ateneo Law School Catalogue was
addressed individually to respondent students. Petitioners' notices/letters
dated February 11, February 14 and 20 clearly show that respondent
students were given ample opportunity to adduce evidence in their behalf
and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very start of
the investigations before the Joint Administration-Faculty-Student
Committee, the law firm of Gonzales Batiller and Bilog and Associates put
in its appearance and filed pleadings in behalf of respondent students.
Respondent students may not use the argument that since they were not
accorded the opportunity to see and examine the written statements which
became the basis of petitioners' February 14, 1991 order, they were denied
procedural due process. 31 Granting that they were denied such
opportunity, the same may not be said to detract from the observance of
due process, for disciplinary cases involving students need not necessarily
include the right to cross examination. An administrative proceeding
conducted to investigate students' participation in a hazing activity need
not be clothed with the attributes of a judicial proceeding. A closer
examination of the March 2, 1991 hearing which characterized the rules on
the investigation as being summary in nature and that respondent students
have no right to examine affiants-neophytes, reveals that this is but a
reiteration of our previous ruling in Alcuaz. 32
Respondent students' contention that the investigating committee failed to
consider their evidence is far from the truth because the February 14, 1992
order clearly states that it was reached only after receiving the written
statements and hearing the testimonies of several witnesses. 33 Similarly,
the Disciplinary Board's resolution dated March 10, 1991 was preceded by a
hearing on March 2, 1991 wherein respondent students were summoned to
answer clarificatory questions. prcd

With regard to the charge of hazing, respondent students fault petitioners

for not explicitly defining the word "hazing" and allege that there is no
proof that they were furnished copies of the 1990-91 Ateneo Law School
Catalogue which prohibits hazing. Such flawed sophistry is not worthy of
students who aspire to be future members of the Bar. It cannot be over-
emphasized that the charge filed before the Joint Administration-Faculty-
Student Investigating Committee and the Disciplinary Board is not a
criminal case requiring proof beyond reasonable doubt but is merely
administrative in character. As such, it is not subject to the rigorous
requirements of criminal due process, particularly with respect to the
specification of the charge involved. As we have had occasion to declare in
previous cases of a similar nature, due process in disciplinary cases
involving students does not entail proceedings and hearings identical to
those prescribed for actions and proceedings in courts of
justice. 34 Accordingly, disciplinary charges against a student need not be
drawn with the precision of a criminal information or complaint. Having
given prior notice to the students involved that "hazing" which is not
defined in the School Catalogue shall be defined in accordance with Senate
Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina, petitioners
have said what needs to be said. We deem this sufficient for purposes of
the investigation under scrutiny.

Hazing, as a ground for disciplining a student, to the extent of dismissal or

expulsion, finds its raison d' etre in the increasing frequency of injury, even
death, inflicted upon the neophytes by their insensate "masters."
Assuredly, it passes the test of reasonableness and absence of malice on
the part of the school authorities. Far from fostering comradeship
and esprit d' corps, it has merely fed upon the cruel and baser instincts of
those who aspire to eventual leadership in our country.
Respondent students argue that petitioners are not in a position to file the
instant petition under Rule 65 considering that they failed to file a motion
for reconsideration first before the trial court, thereby bypassing the latter
and the Court of Appeals. 3 5
It is accepted legal doctrine that an exception to the doctrine of exhaustion
of remedies is when the case involves a question of law, 36as in this case,
where the issue is whether or not respondent students have been afforded
procedural due process prior to their dismissal from petitioner university.
Lastly, respondent students argue that we erred in issuing a Temporary
Restraining Order since petitioners do not stand to suffer irreparable
damage in the event that private respondents are allowed to re-enroll. No
one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found by the
Disciplinary Board to have violated petitioner university's disciplinary rules
and standards will certainly undermine the authority of the administration
of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic
freedom which has been enshrined in the 1935, 1973 and the present 1987
Constitutions.
At this juncture, it would be meet to recall the essential freedoms
subsumed by Justice Felix Frankfurter in the term "academic freedom"
cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may teach;
(2) what may be taught; (3) how it shall be taught; and (4) who may be
admitted to study. LibLex

Socrates, the "first of the great moralists of Greece," proud to claim the
title "gadfly of the State," has deservedly earned for himself a respected
place in the annals of history as a martyr to the cause of free intellectual
inquiry. To Plato, this great teacher of his was the "best, the most sensible,
and the most just man of his age." In 399 B.C., he willingly quaffed the
goblet of hemlock as punishment for alleged "corruption" of the youth of
Athens. He describes in his own words how this charge of "corruption," the
forerunner of the concept of academic freedom, came about:
"Young men of the richer classes, who have not much to do, come
about me of their own accord: they like to hear the pretenders
examined, and they often imitate me, and examine others
themselves; there are plenty of persons, as they soon discover, who
think that they know something, but really know little or nothing; and
then those who are examined by them, instead of being angry with
themselves are angry with me. This confounded Socrates, they say;
this villainous misleader of youth. And then if somebody asks them,
Why, what evil does he practice or teach? they do not know, and
cannot tell; but in order that they may not appear to be at a loss, they
repeat the ready-made charges which are used against all
philosophers about teaching things up in the clouds and under the
earth, and having no gods, and making the worse appear the better
cause; for they do not like to confess that their pretense of
knowledge has been detected — which is the truth; and as they are
numerous and ambitious and energetic, and are all in battle array and
have persuasive tongues, they have filled your ears with their loud
and inveterate calumnies." 38

Since Socrates, numberless individuals of the same heroic mold have

similarly defied the stifling strictures of authority, whether State, Church,
or various interest groups, to be able to give free rein to their ideas.
Particularly odious were the insidious and blatant attempts at thought
control during the time of the Inquisition until even the Medieval
universities, renowned as intellectual centers in Europe, gradually lost their
autonomy.
In time, such noble strivings, gathering libertarian encrustations along the
way, were gradually crystallized in the cluster of freedoms which awaited
the champions and martyrs of the dawning modern age. This was
exemplified by the professors of the new German universities in the 16th
and 17th centuries such as the Universities of Leiden (1575), Helmstadt
(1574) and Heidelberg (1652). The movement back to freedom of inquiry
gained adherents among the exponents of fundamental human rights of the
19th and 20th centuries. "Academic freedom", the term as it evolved to
describe the emerging rights related to intellectual liberty, has traditionally
been associated with freedom of thought, speech, expression and the
press; in other words, with the right of individuals in university
communities, such as professors, researchers and administrators, to
investigate, pursue, discuss and, in the immortal words of Socrates, "to
follow the argument wherever it may lead," free from internal and external
interference or pressure.
But obviously, its optimum impact is best realized where the freedom is
exercised judiciously and does not degenerate into unbridled license. Early
cases on this individual aspect of academic freedom have stressed the
need for assuring to such individuals a measure of independence through
the guarantees of autonomy and security of tenure. The components of this
aspect of academic freedom have been categorized under the areas of: (1)
who may teach and (2) how to teach.
It is to be realized that this individual aspect of academic freedom could
have developed only pari passu with its institutional counterpart. As
corporate entities, educational institutions of higher learning are inherently
endowed with the right to establish their policies, academic and otherwise,
unhampered by external controls or pressure. In
the Frankfurter formulation, this is articulated in the areas of: (1) what shall
be taught, e.g., the curriculum and (2) who may be admitted to study.
In the Philippines, the Acts which were passed with the change of
sovereignty from the Spanish to the American government, namely, the
Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made no
mention of the rights now subsumed under the catch-all term of "academic
freedom." This is most especially true with respect to the institutional
aspect of the term. It had to await the drafting of the Philippine
Constitutions to be recognized as deserving of legal protection.
The breakthrough for the concept itself was found in Section 5 of the 1935
Constitution which stated: "Universities established by the State shall
enjoy academic freedom." The only State university at that time, being the
University of the Philippines, the Charter was perceived by some as
exhibiting rank favoritism for the said institution at the expense of the
rest.prcd

In an attempt to broaden the coverage of the provision, the 1973

Constitution provided in its Section 8 (2): "All institutions of higher learning
shall enjoy academic freedom." In his interpretation of the provision, former
U.P. President Vicente G. Sinco, who was also a delegate to the 1971
Constitutional Convention, declared that it "definitely grants the right of
academic freedom to the University as an institution as distinguished from
the academic freedom of a university professor." 39
Has the right been carried over to the present Constitution? In an attempt
to give an explicit definition with an expanded coverage, the
Commissioners of the Constitutional Commission of 1986 came up with this
formulation: "Academic freedom shall be enjoyed by students, by teachers,
and by researchers." After protracted debate and ringing speeches, the
final version which was none too different from the way it was couched in
the previous two (2) Constitutions, as found in Article XIV, Section 5 (2)
states: "Academic freedom shall be enjoyed in all institutions of higher
learning." In anticipation of the question as to whether and what aspects of
academic freedom are included herein, ConCom Commissioner Adolfo S.
Azcuna explained: "Since academic freedom is a dynamic concept, we
want to expand the frontiers of freedom, especially in education, therefore,
we shall leave it to the courts to develop further the parameters of
academic freedom." 40
More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When
we speak of the sentence 'academic freedom shall be enjoyed in all
institutions of higher learning,' do we mean that academic freedom shall be
enjoyed by the institution itself?" Azcuna replied: "Not only that, it also
includes . . ." Gascon finished off the broken thought, — "the faculty and the
students." Azcuna replied: "Yes."
Since Garcia v. Loyola School of Theology, 41 we have consistently upheld
the salutary proposition that admission to an institution of higher learning
is discretionary upon a school, the same being a privilege on the part of the
student rather than a right. While under the Education Act of 1982, students
have a right "to freely choose their field of study, subject to existing
curricula and to continue their course therein up to graduation," such right
is subject, as all rights are, to the established academic and disciplinary
standards laid down by the academic institution. 42
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students. This
right . . . extends as well to parents . . . as parents are under a social and
moral (if not legal) obligation, individually and collectively, to assist and
cooperate with the schools." 43
Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The rules may
include those governing student discipline." 44 Going a step further, the
establishment of rules governing university-student relations, particularly
those pertaining to student discipline, may be regarded as vital, not merely
to the smooth and efficient operation of the institution, but to its very
survival.

Within memory of the current generation is the eruption of militancy in the

academic groves as collectively, the students demanded and plucked for
themselves from the panoply of academic freedom their own rights
encapsulized under the rubric of "right to education" forgetting that, in
Hohfeldian terms, they have a concomitant duty, and that is, their duty to
learn under the rules laid down by the school.
Considering that respondent students are proud to claim as their own a
Christian school that includes Theology as part of its curriculum and
assiduously strives to turn out individuals of unimpeachable morals and
integrity in the mold of the founder of the order of the Society of Jesus, St.
Ignatius of Loyola, and their God-fearing forbears, their barbaric and
ruthless acts are the more reprehensible. It must be borne in mind that
universities are established, not merely to develop the intellect and skills
of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the
development, or flowering if you will, of the total man.
In essence, education must ultimately be religious — not in the sense that
the founders or charter members of the institution are sectarian or profess
a religious ideology. Rather, a religious education, as the renowned
philosopher Alfred North Whitehead said, is "an education which inculcates
duty and reverence." 45 It appears that the particular brand of religious
education offered by the Ateneo de Manila University has been lost on the
respondent students.
Certainly, they do not deserve to claim such a venerable institution as the
Ateneo de Manila University as their own a minute longer, for they may
foreseeably cast a malevolent influence on the students currently enrolled,
as well as those who come after them. cdphil

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court
of Appeals that: "The maintenance of a morally conducive and orderly
educational environment will be seriously imperilled if, under the
circumstances of this case, Grace Christian is forced to admit petitioner's
children and to reintegrate them to the student body." 46 Thus, the decision
of petitioner university to expel them is but congruent with the gravity of
their misdeeds. That there must be such a congruence between the offense
committed and the sanction imposed was stressed in Malabanan v.
Ramento. 47
Having carefully reviewed the records and the procedure followed by
petitioner university, we see no reason to reverse its decision founded on
the following undisputed facts: that on February 8, 9 and 10, 1991, the
Aquila Legis Fraternity conducted hazing activities; that respondent
students were present at the hazing as auxiliaries, and that as a result of
the hazing, Leonardo Villa died from serious physical injuries, while
Bienvenido Marquez was hospitalized. In light of the vicious acts of
respondent students upon those whom ironically they would claim as
"brothers" after the initiation rites, how can we countenance the imposition
of such nominal penalties as reprimand or even suspension? We, therefore,
affirm petitioners' imposition of the penalty of dismissal upon respondent
students. This finds authority and justification in Section 146 of the Manual
of Regulations for Private Schools. 48
WHEREFORE, the instant petition is GRANTED; the order of respondent
Judge dated May 17, 1991 reinstating respondent students into petitioner
university is hereby REVERSED. The resolution of petitioner Joaquin Bernas
S. J., then President of Ateneo de Manila University dated March 10, 1991,
is REINSTATED and the decision of the Special Board DISMISSING
respondent students ADEL ABAS and ZOSIMO MENDOZA dated May 20,
1991 is hereby AFFIRMED.
SO ORDERED.
Narvasa, C .J ., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Nocon,
Bellosillo, Melo and Quiason, JJ ., concur.
Griño Aquino, J ., is on leave.
Cruz, J ., concur in the result. I do not join in the statements in the
ponencia which seem to me to be a prejudgment of the criminal cases
against the private respondents for the death of Lenny Villa.
||| (Ateneo De Manila University v. Capulong, G.R. No. 99327, [May 27, 1993])
 EN BANC

[G.R. No. 178552. October 5, 2010.]

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on

behalf of the South-South Network (SSN) for Non-State Armed
Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., petitioners, vs. ANTI-TERRORISM COUNCIL, THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE, respondents.

[G.R. No. 178554. October 5, 2010.]

KILUSANG MAYO UNO (KMU), represented by its Chairperson

Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General
Antonio C. Pascual, and CENTER FOR TRADE UNION AND
HUMAN RIGHTS, represented by its Executive Director Daisy
Arago, petitioners, vs. HON. EDUARDO ERMITA, in his capacity
as Executive Secretary, NORBERTO GONZALES, in his capacity
as Acting Secretary of National Defense, HON. RAUL GONZALES,
in his capacity as Secretary of Justice, HON. RONALDO PUNO,
in his capacity as Secretary of the Interior and Local
Government, GEN. HERMOGENES ESPERON, in his capacity as
AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON,
in his capacity as PNP Chief of Staff, respondents.

[G.R. No. 178581. October 5, 2010.]

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL

ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY,
EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY),
SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG
KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE
FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR.,
DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR.,
SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ,
ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.),
CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE
LESUS, RITA BAUA, REY CLARO CASAMBRE,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as
President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE
SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE
OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE
PNP, including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.

[G.R. No. 178890. October 5, 2010.]

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S

RIGHTS, represented herein by Dr. Edelina de la Paz, and
representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own
behalf; DESAPARECIDOS, represented by Mary Guy Portajada
and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES
LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA),
represented by Donato Continente and also on his own behalf,
ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP),
represented by Bishop Elmer M. Bolocon, UCCP, and
PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by
Fr. Gilbert Sabado, OCARM, petitioners, vs. GLORIA MACAPAGAL-
ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF
JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF
FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE
OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE
PNP, including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.
 [G.R. No. 179157. October 5, 2010.]

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented

by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF
LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL
and FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E.
TAÑADA, petitioners, vs. EXECUTIVE SECRETARY EDUARDO
ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), respondents.

[G.R. No. 179461. October 5, 2010.]

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG

(BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHANG
MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT
OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST),
PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES
(SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA
REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA
KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT
UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG
KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN
NIÑO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO,
JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as
President and Commander-in-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY
RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE
SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE
OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF
THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE
PNP, including its intelligence and investigative elements, AFP
CHIEF GEN. HERMOGENES ESPERON, respondents.

DECISION
CARPIO MORALES, J : p

Before the Court are six petitions challenging the constitutionality

of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and
Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007, 1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner
Southern Hemisphere Engagement Network, Inc., a non-government
organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer
and lawyer, filed a petition for certiorari and prohibition on July 16, 2007
docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno
(NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR),
represented by their respective officers 3 who are also bringing the
action in their capacity as citizens, filed a petition for certiorari and
prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil
Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW),
League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers, 4 and joined by
concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido
Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB,
Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan,
Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes,
Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro
Casambre filed a petition for certiorari and prohibition docketed as G.R.
No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations
Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church People's Response
(PCPR), which were represented by their respective officers 5 who are
also bringing action on their own behalf, filed a petition for certiorari and
prohibition docketed as G.R. No. 178890. cCEAHT

On August 29, 2007, the Integrated Bar of the Philippines (IBP),

Counsels for the Defense of Liberty (CODAL), 6 Senator Ma. Ana Consuelo
A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition
for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern
Tagalog Region, 7 and individuals 8 followed suit by filing on September
19, 2007 a petition for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN petition
in G.R. No. 178581.
 Impleaded as respondents in the various petitions are the Anti-
Terrorism Council 9 composed of, at the time of the filing of the petitions,
Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary
Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto
Romulo, Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary Ronaldo
Puno, and Finance Secretary Margarito Teves as members. All the
petitions, except that of the IBP, also impleaded Armed Forces of the
Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded
President Gloria Macapagal-Arroyo and the support agencies for the Anti-
Terrorism Council like the National Intelligence Coordinating Agency,
National Bureau of Investigation, Bureau of Immigration, Office of Civil
Defense, Intelligence Service of the AFP, Anti-Money Laundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and
investigative elements.
The petitions fail.
Petitioners' resort to
certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
Rules of Court is clear:
Section 1. Petition for certiorari. — When any tribunal, board or
officer exercising judicial or quasi-judicial functions hasacted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of

particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion amounting to
lack or excess of jurisdiction. 2005cdasia

The impropriety of certiorari as a remedy aside, the petitions fail

just the same.
In constitutional litigations, the power of judicial review is limited
by four exacting requisites, viz.: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the question
of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case. 10
In the present case, the dismal absence of the first two requisites,
which are the most essential, renders the discussion of the last two
superfluous.
Petitioners lack locus
standi
Locus standi or legal standing requires a personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions. 11
Anak Mindanao Party-List Group v. The Executive
Secretary 12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is
being challenged. The gist of the question on standing is whether a
party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination
of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a
direct and personal interest. It must show not only that the law or
any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that it suffers thereby in some indefinite
way. It must show that it has been or is about to be denied some right
or privilege to which it is lawfully entitled or that it is about to be
subjected to some burdens or penalties by reason of the statute or
act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some actual
or threatened injury as a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the challenged action,
and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being

suspected "communist fronts" by the government, especially the
military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens and
taxpayers.
While Chavez v. PCGG 13 holds that transcendental public
importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal injury,
cases involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling State
and societal interests in the proscription of harmful conduct, as will later
be elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome
of the controversy. None of them faces any charge underRA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA,
EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been
subjected to "close security surveillance by state security forces," their
members followed by "suspicious persons" and "vehicles with dark
windshields," and their offices monitored by "men with military build."
They likewise claim that they have been branded as "enemies of the
[S]tate." 14
Even conceding such gratuitous allegations, the Office of the
Solicitor General (OSG) correctly points out that petitioners have yet to
show any connection between the purported "surveillance"
and the implementation of RA 9372.
 BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD andAgham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial
notice of respondents' alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP)
and its armed wing, the National People's Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription
without following the procedure under the law. 15 The petition of BAYAN-
ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of
petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits
of the jurisdiction of the court. The principal guide in determining
what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts
evidenced by public records and facts of general notoriety. Moreover,
a judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of accurate and ready
determination by resorting to sources whose accuracy cannot
reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters
coming to the knowledge of men generally in the course of the
ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of every person.
As the common knowledge of man ranges far and wide, a wide
variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive
knowledge. 16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of

judicial notice. Petitioners' apprehension is insufficient to substantiate
their plea. That no specific charge or proscription under RA 9372 has
been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called
tagging. cHCIEA

The same is true with petitioners KMU, NAFLU and CTUHR in G.R.
No. 178554, who merely harp as well on their supposed "link" to the CPP
and NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization
and members.
While in our jurisdiction there is still no judicially declared terrorist
organization, the United States of America 17 (US) and the European
Union 18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint
statement of Executive Secretary Eduardo Ermita and Justice Secretary
Raul Gonzales that the Arroyo Administration would adopt the US and EU
classification of the CPP and NPA as terrorist organizations. 19 Such
statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has
been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely
without any threat of, much less an actual, prosecution or proscription
under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by
Party-list Representatives Saturnino Ocampo, Teodoro Casiño, Rafael
Mariano and Luzviminda Ilagan, 20 urged the government to resume
peace negotiations with the NDF by removing the impediments thereto,
one of which is the adoption of designation of the CPP and NPA by the
US and EU as foreign terrorist organizations. Considering the policy
statement of the Aquino Administration 21 of resuming peace talks with
the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied
organizations.
More important, there are other parties not before the Court
with direct and specific interests in the questions being raised. 22 Of
recent development is the filing of the first case for proscription under
Section 17 23 of RA 9372 by the Department of Justice before the Basilan
Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of
a prosecution under RA 9372 by alluding to past rebellion charges
against them.
In Ladlad v. Velasco, 25 the Court ordered the dismissal of rebellion
charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and
Joel Virador, Teodoro Casiño and Saturnino Ocampo ofBayan Muna. Also
named in the dismissed rebellion charges were petitioners Rey Claro
Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-
organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY,
LFS and COURAGE. 26
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the enactment
of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no
relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372, none
of petitioners has been charged.
 Petitioners IBP and CODAL in G.R. No. 179157 base their claim
of locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance to
those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does
not, however, suffice to clothe the IBP or any of its members with
standing. 27 The IBP failed to sufficiently demonstrate how its mandate
under the assailed statute revolts against its constitutional rights and
duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have
been the subject of "political surveillance," also lacks locus
standi. Prescinding from the veracity, let alone legal basis, of the claim
of "political surveillance," the Court finds that she has not shown even
the slightest threat of being charged under RA 9372. Similarly lacking
in locus standi are former Senator Wigberto Tañada and Senator Sergio
Osmeña III, who cite their being respectively a human rights advocate
and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed. DSHTaC

Petitioners Southern Hemisphere Engagement Network and Atty.

Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the
issues they raise are of transcendental importance, "which must be
settled early" and are of "far-reaching implications," without mention of
any specific provision of RA 9372 under which they have been charged,
or may be charged. Mere invocation of human rights advocacy has
nowhere been held sufficient to clothe litigants with locus
standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the law's enforcement. To rule
otherwise would be to corrupt the settled doctrine of locus standi, as
every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners
as taxpayers and citizens. A taxpayer suit is proper only when there is an
exercise of the spending or taxing power of Congress, 28 whereas citizen
standing must rest on direct and personal interest in the proceeding. 29
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of the
individual petitioner-citizens has alleged any direct and personal interest
in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by
the assertion of a public right, do not establish locus standi.Evidence of
a direct and personal interest is key.
Petitioners fail to
present an actual case or
controversy
By constitutional fiat, judicial power operates only when there is an actual
case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
 grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government. 30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission, 31 the Court ruled that

the power of judicial review is limited to actual cases or controversies to
be exercised after full opportunity of argument by the parties. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not conjectural
or anticipatory, lest the decision of the court would amount to an
advisory opinion. 32
Information Technology Foundation of the Philippines v.
COMELEC 33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging.The controversy
must be justiciable — definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right,
on the one hand, and a denial thereof on the other hand; that is, it
must concern a real and not merely a theoretical question or issue.
There ought to bean actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a hypothetical
state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the

Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events. 34 Similarly,
a petition that fails to allege that an application for a license to operate
a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem. 35
The Court dismissed the petition in Philippine Press Institute v.
Commission on Elections 36 for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections, 37 to rule on
the religious freedom claim of the therein petitioners based merely on a
perceived potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual controversy between
real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence of a perceived threat to any constitutional interest suffices
to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must besufficient facts to
enable the Court to intelligently adjudicate the issues. 38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project, 39 allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and undergo
a criminal prosecution as the sole means of seeking relief." 40 The
plaintiffs therein filed an action before a federal court to assail the
constitutionality of the material support statute, 18 U.S.C. §2339B (a)
(1), 41 proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations.
They claimed that they intended to provide support for the humanitarian
and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the
merits when an anticipatory petition clearly shows that the challenged
prohibition forbids the conduct or activity that a petitioner seeks to
do, as there would then be a justiciable controversy. 42
Unlike the plaintiffs in Holder, however, herein petitioners have
failed to show that the challenged provisions of RA
9372 forbidconstitutionally protected conduct or activity that they seek
to do. No demonstrable threat has been established, much less a real
and existing one.
Petitioners' obscure allegations of sporadic "surveillance" and
supposedly being tagged as "communist fronts" in no way approximate
a credible threat of prosecution. From these allegations, the Court is
being lured to render an advisory opinion,which is not its function. 43
aCcSDT

Without any justiciable controversy, the petitions have become

pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to undertake
and the anticipated reaction to it of a public official are merely
theorized, lie beyond judicial review for lack of ripeness. 44
The possibility of abuse in the implementation of RA 9372 does not
avail to take the present petitions out of the realm of the surreal and
merely imagined. Such possibility is not peculiar to RA 9372 since the
exercise of any power granted by law may be abused. 45 Allegations of
abuse must be anchored on real events before courts may step in to
settle actual controversies involving rights which are legally demandable
and enforceable.
A facial invalidation of a
statute is allowed only in free
speech cases, wherein certain
rules of constitutional
litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly
broad the definition of the crime of terrorism 46 under RA 9372in that
terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no
standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-
for-vagueness and overbreadth find no application in the present case
since these doctrines apply only to free speech cases; and that RA
9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is
imperative to outline the schools of thought on whether the void-for-
vagueness and overbreadth doctrines are equally applicable grounds to
assail a penal statute.
 Respondents interpret recent jurisprudence as slanting toward the
idea of limiting the application of the two doctrines to free speech cases.
They particularly cite Romualdez v. Hon. Sandiganbayan 47 and Estrada v.
Sandiganbayan. 48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word
"intervene" in Section 5 49 of the Anti-Graft and Corrupt Practices
Act was intrinsically vague and impermissibly broad. The Court stated
that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases," and are "not appropriate for
testing the validity of penal statutes." 50 It added that, at any rate, the
challenged provision, under which the therein petitioner was charged, is
not vague. 51
While in the subsequent case of Romualdez v. Commission on
Elections, 52 the Court stated that a facial invalidation of criminal
statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election
offense 53 under the Voter's Registration Act of 1996, with which the
therein petitioners were charged, is couched in precise language. 54
The two Romualdez cases rely heavily on the Separate Opinion 55 of
Justice Vicente V. Mendoza in the Estrada case, where the Court found
the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a "facial" invalidation as opposed to an "as-
applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its
validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision,
reads:
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by a
statute drawn with narrow specificity." The possible harm to society
in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State may
well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims
of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. "A plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional."
As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce
facial invalidation, whilestatutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that
this Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected. It
constitutes a departure from the case and controversy requirement
of the Constitution and permits decisions to be made without
concrete factual settings and in sterile abstract contexts. But, as the
U.S. Supreme Court pointed out in Younger v. Harris:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line
analysis of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort," and is generally disfavored. In determining
the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light
of the conduct with which the defendant is charged. 56 (Underscoring
supplied.)
 The confusion apparently stems from the interlocking relation of
the overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation of
due process of law) or a speech regulation (under a claim of abridgement
of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle. 57 Theoverbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms. 58 DCcIaE

As distinguished from the vagueness doctrine, the overbreadth

doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even though
some of it is protected. 59
A “facial— challenge is likewise different from an “as-applied—
challenge.
Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not only
on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities. 60
Justice Mendoza accurately phrased the subtitle 61 in his
concurring opinion that the vagueness and overbreadth doctrines, as
grounds for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified
by the aim to avert the "chilling effect" on protected speech, the
exercise of which should not at all times be abridged. 62 As reflected
earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected
rights. 63
The Court reiterated that there are "critical limitations by which a
criminal statute may be challenged" and "underscored that an 'on-its-
face' invalidation of penal statutes . . . may not be allowed." 64
[T]he rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
 facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes
may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the
grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A
facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test
will impair the State's ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the
State's power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him. 65 (Emphasis
and underscoring supplied)

It is settled, on the other hand, that the application of the

overbreadth doctrine is limited to a facial kind of challenge and, owing to
the given rationale of a facial challenge, applicable only to free speech
cases.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as
applied to the litigants.
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on
its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent
effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of
those third parties. 66 (Emphasis in the original omitted; underscoring
supplied.)

In restricting the overbreadth doctrine to free speech claims, the

Court, in at least two cases, 67 observed that the US Supreme Court has
not recognized an overbreadth doctrine outside the limited context of the
First Amendment, 68 and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words. 69 InVirginia v. Hicks, 70 it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech or speech-related
conduct. Attacks on overly broad statutes are justified by the
"transcendent value to all society of constitutionally protected
expression." 71
Since a penal statute may only be assailed for being vague
as applied to petitioners, a limited vagueness analysis of
the definition of "terrorism" in RA 9372 is legally
impermissible absent an actual or imminent charge
against them
While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that there was
no basis to review the law "on its face and in its entirety." 72 It stressed
that "statutes found vague as a matter of due process typically are
invalidated only 'as applied' to a particular defendant." 73
American jurisprudence 74 instructs that "vagueness challenges
that do not involve the First Amendment must be examined in light of
the specific facts of the case at hand and not with regard to the
statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated
defendants' claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as "among the most important guarantees
of liberty under law." 75
In this jurisdiction, the void-for-vagueness doctrine asserted under
the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases, 76 the Court
brought the doctrine into play in analyzing an ordinance penalizing the
non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132 (b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code.
Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case. cEaACD

There is no merit in the claim that RA 9372 regulates

speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited
Section 3 of RA 9372, the following elements may be culled: (1) the
offender commits an act punishable under any of the cited provisions of
the Revised Penal Code, or under any of the enumerated special penal
laws; (2) the commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of "unlawful
demand" in the definition of terrorism 77 must necessarily be transmitted
through some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize
is conduct, not speech.
 Before a charge for terrorism may be filed under RA 9372, there
must first be a predicate crime actually committed to trigger the
operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an
"unlawful demand." Given the presence of the first element, any attempt
at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected
speech.
Petitioners' notion on the transmission of message is entirely
inaccurate, as it unduly focuses on just one particle of an element of the
crime. Almost every commission of a crime entails some mincing of
words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one
U.S. case 78 illustrated that the fact that the prohibition on discrimination
in hiring on the basis of race will require an employer to take down a sign
reading "White Applicants Only" hardly means that the law should be
analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of
the criminal conduct alter neither the intent of the law to punish socially
harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element
of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in
most instances brought about through speaking or writing. Butit has
never been deemed an abridgement of freedom of speech or press to
make a course of conduct illegal merely because the conduct was, in
part, initiated, evidenced, or carried out by means of language, either
spoken, written, or printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies
deemed injurious to society. 79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct,

because they merely evidence a prohibited conduct. 80Since speech is
not involved here, the Court cannot heed the call for a facial analysis.
IN FINE, Estrada and the other cited authorities engaged in a
vagueness analysis of the therein subject penal statute as appliedto the
therein petitioners inasmuch as they were actually charged with the
pertinent crimes challenged on vagueness grounds. The Court in said
cases, however, found no basis to review the assailed penal statute on
its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness
grounds, since the therein plaintiffs faced a "credible threat of
prosecution" and "should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual
charge nor a credible threat of prosecution under RA 9372. Even a
limited vagueness analysis of the assailed definition of "terrorism" is
thus legally impermissible. The Court reminds litigants that judicial
 power neither contemplates speculative counseling on a statute's future
effect on hypothetical scenarios nor allows the courts to be used as an
extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
Corona, C.J., Velasco, Jr., Nachura, Leonardo-de Castro, Brion,
Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez,
Mendoza and Sereno, JJ., concur.
Carpio, J., is on official leave
(Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
|||

Council, G.R. No. 178552, 178554, 178581, 178890, 179157, 179461, [October
5, 2010], 646 PHIL 452-496)