IBM PHILIPPINES, INC., VIRGILIO L. PEÑA, and VICTOR V.
furnish the employee two written notices before termination of his
REYES, petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION and ANGEL D. ISRAEL, respondents
G.R. No. 117221. April 13, 1999
Labor Law; Appeals; The practice of admitting additional evidence on
appeal in labor cases has been sanctioned by this Court. — It is indeed
true that administrative agencies, such as the NLRC, are not bound by
the technical rules of procedure and evidence in the adjudication of
cases. This was the reason private respondent was allowed to submit
additional evidence even after the case was deemed submitted for
resolution by the labor arbiter. The practice of admitting additional
evidence on appeal in labor cases has been sanctioned by this Court.
Same; Same; The provision for flexibility in administrative procedure
“does not go so far as to justify orders without a basis in evidence
having rational probative value.” — The liberality of procedure in
administrative actions is subject to limitations imposed by basic
requirements of due process. As this Court said in Ang Tibay v. CIR,
the provision for flexibility in administrative procedure “does not go so
far as to justify orders without a basis in evidence having rational
probative value.”
Same; Same; In proceedings before the NLRC, the evidence presented
before it must at least have a modicum of admissibility for it to be
given some probative value. — The computer print-outs, which
constitute the only evidence of petitioners, afford no assurance of their
authenticity because they are unsigned. The decisions of this Court,
while adhering to a liberal view in the conduct of proceedings before
administrative agencies, have nonetheless consistently required some
proof of authenticity or reliability as condition for the admission of
documents.
Same; Dismissals; Due Process; The law requires an employer to
furnish the employee two written notices before termination of his
employment may be ordered. — The law requires an employer to
employment may be ordered. The first notice must inform him of the
particular acts or omissions for which his dismissal is sought, the
second of the employer’s decision to dismiss the employee after he
has been given the opportunity to be heard and defend himself.
Same; Same; Same; Every opportunity and assistance must be
accorded to the employee by the management to enable him to
prepare adequately for his defense, including legal representation. —
These requirements were not observed in this case. As noted earlier,
there is no evidence that there was an exchange of communication
between petitioners and private respondent regarding the latter’s
supposed substandard performance. Private respondent has
consistently denied, however, that he was ever advised of the charges
hurled against him. The so-called one-on-one consultations or
“personal counsellings” mentioned in the print-outs between petitioner
Reyes and private respondent concerning the latter’s work habits do
not satisfy the requirements of due process, as we had occasion to
say in Pono v. NLRC. Consultations or conferences may not be a
substitute for the actual holding of a hearing. Every opportunity and
assistance must be accorded to the employee by the management to
enable him to prepare adequately for his defense, including legal
representation.
Same; Same; Same; Words and Phrases; What would qualify as
sufficient or “ample opportunity,” as required by law, would be “every
kind of assistance that management must accord to the employee to
enable him to prepare adequately for his defense.”—In Ruffy v. NLRC,
this Court held that what would qualify as sufficient or “ample
opportunity,” as required by law, would be “every kind of assistance
that management must accord to the employee to enable him to
prepare adequately for his defense.” No such opportunity was given
to private respondent in this case. He was simply served his
termination notice without being heard in his defense.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
1
The facts are stated in the opinion of the Court.
MENDOZA, J.:
This is a petition for certiorari to set aside the decision, dated April 15,
1994, of the National Labor Relations Commission (NLRC) finding
private respondent to have been illegally dismissed and ordering his
reinstatement and the payment of his wages from August 1991 until
he is reinstated.
Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation
engaged in the business of selling computers and computer services.
Petitioners Virgilio L. Peña and Victor V. Reyes were ranking officers
of IBM during the period pertinent to this case.
On April 1, 1975, private respondent Angel D. Israel commenced
employment with IBM as Office Products Customer Engineer. For the
next sixteen (16) years, he occupied two other positions in the
company, received numerous awards, and represented the company
in various seminars and conferences in and out of the country.
On February 1, 1990, private respondent was assigned to the team
supervised by petitioner Reyes.
On June 27, 1991, petitioner Reyes handed a letter to private
respondent informing the latter that his employment in the company
was to be terminated effective July 31, 1991 on the ground of habitual
tardiness and absenteeism. The letter states, thus:
June 27, 1991
Mr. Angel D. Israel
Present
Dear Angel,
This refers to our previous discussion regarding your habitual
absences and tardiness the last of which was on June 26, 1991.
Your records will attest to the fact that on several occasions, your
attention has been called to your habitual tardiness and non-
observance of standing office procedures regarding attendance.
Despite several opportunities given to you, you cannot seem to reform
your ways and attitude on the matter of attendance. Considering that
we are a service-oriented company, you can appreciate that we cannot
allow such a situation to continue lest we put the best interest of the
Company in jeopardy.
Much to our regret, therefore, pleased (sic) be advised that the
Company is terminating your employment effective July 31, 1991.
You are requested to report to Personnel Department at your earliest
convenience for the settlement of any money or benefits due you.
Very truly yours,
(Sgd) V.V. REYES
Business Manager
cc: L.L. Abano
Alleging that his dismissal was without just cause and due process,
private respondent filed a complaint with the Arbitration Branch of the
Department of Labor and Employment (DOLE) on July 18, 1991.
In his position paper filed on September 6, 1991, he claimed that he
was not given the opportunity to be heard and that he was summarily
dismissed from employment based on charges which had not been
duly proven.
Petitioners denied private respondent’s claims. It was alleged that
several conferences were held by the management with private
respondent because of the latter’s unsatisfactory performance in the
company and he was given sufficient warning and opportunity to
“reform and improve his attitude toward attendance,” but to their
regret, he never did. It was alleged that private respondent was
constantly told of his poor attendance record and inefficiency through
2
the company’s internal electronic mail (e-mail) system. According to
petitioners, this system allows paperless or “telematic” communication
among IBM personnel in the company offices here and abroad. An
employee is assigned a “User ID” and the corresponding password is
provided by the employee himself and, theoretically, known only to
him. Employees are then expected to turn on their computers
everyday, “log in” to the system by keying in their respective IDs and
passwords in order to access and read the messages sent to and
stored in the computer system. To reply, an employee types in or
encodes his message-response and sends the same to the intended
recipient, also via the computer system. The system automatically
records the time and date each message was sent and received,
including the identification of the sender and receiver thereof. All
messages are recorded and stored in computer disks.
Attached to petitioners’ position paper were copies of printouts of
alleged computer entries/messages sent by petitioner Reyes to private
respondent through IBM’s internal computer system. The following is
a summary of the contents of the print-outs which mostly came from
petitioner Reyes’ computer:
(a) Private respondent was admonished when he would miss out on
meetings with clients and failed to attend to important accounts, such
as that of Hella Philippines;
(b) Petitioner Reyes conducted consultations with private respondent
concerning the latter’s work habits;
(c) A new policy of requiring employees to be at the office at 8:30
a.m. every morning was adopted and employees were no longer
allowed to sign out of the office by phone;
(d) Petitioner Reyes would type into his computer the records of the
security guard which reflect private respondent’s daily tardiness and
frequent absences;
(e) Private respondent was admonished when he failed to respond to
instructions from his superiors;
(f) IBM Australia, contacted by Hella Australia, once asked about the
reported lack of attention given to Hella Philippines. Private
respondent directly answered IBM Australia, through telematic memo,
and reported that Hella Philippines was deferring its computer plan
and decided to use micros in the meantime;
(g) The said response was denied by Hella Australia which later made
it clear that it would be buying “anything but IBM”; and
(h) While private respondent showed some improvement after
consultations where he allegedly admitted his shortcomings, petitioner
Reyes reported that he (private respondent) would eventually slide
back to his old ways despite constant counselling and repeated
warnings that he would be terminated if he would not improve his
work habits.
Through these computer print-outs calling private respondent’s
attention to his alleged tardiness and absenteeism, petitioner sought
to prove that private respondent was sufficiently notified of the
charges against him and was guilty thereof because of his failure to
deny the said charges.
On March 13, 1992, the labor arbiter rendered a decision finding
private respondent to have been terminated for cause and accordingly
dismissing the complaint. Considering, however, the ground for
termination as well as private respondent’s long record of service to
the company, the arbiter ordered the award of separation pay at the
rate equivalent to one-half (1/2) month salary for every year of
service. The dispositive portion of the decision reads—
WHEREFORE, judgment is hereby rendered in this case declaring
respondent IBM Phils., Inc. not guilty of the charge of illegal dismissal.
However, respondent company is directed to pay complainant Israel
the sum of Two Hundred Forty Eight Thousand (P248,000.00) as
separation pay. All other claims are denied for lack of merit.
It appears, however, that prior to the release of the labor arbiter’s
decision at 11:21 a.m. on March 26, 1992, private respondent had
3
filed a “Manifestation And Motion To Admit Attached New Evidence
For The Complainant” which was received by the Arbitration Branch
at 10:58 a.m. of the same day. The evidence consisted of private
respondent’s Daily Time Records (DTRs) for the period June 1, 1990
to August 31, 1990 and pay slips for the period January 1990 to June
1991 showing that private respondent did not incur any unexcused
absences, that he was not late on any day within the period and that
no deduction was made from his salary on account of tardiness or
absences.
Private respondent appealed to the NLRC which, on April 15, 1994,
reversed the labor arbiter’s decision and found private respondent’s
dismissal illegal. The NLRC ruled: (1) that the computer print-outs
which petitioners presented in evidence to prove that private
respondent’s office attendance was poor were insufficient to show that
the latter was guilty of habitual absences and tardiness; and (2) that
private respondent was not heard in his defense before the issuance
of the final notice of dismissal.18 The dispositive portion of the NLRC’s
decision reads:
WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE
and a new one entered declaring the dismissal of the complainant as
illegal. Respondent (sic) are hereby ordered to reinstate complainant
to his former position without loss of his seniority rights and to pay
backwages starting August 1991 until reinstated at the rate of
P40,516.65 a month including all its benefits and bonuses.
Presiding Commissioner Edna Bonto-Perez dissented on the ground
she found that petitioners have presented strong and convincing
documentary evidence that private respondent was guilty of habitual
tardiness and absences. She was also of the opinion that private
respondent was sufficiently warned before he was actually dismissed.
Petitioners moved for a reconsideration, but their motion was denied
in a resolution, dated July 20, 1994. Hence, this petition for certiorari.
Petitioners contend that—
1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF
JURISDICTION IN HOLDING THAT NO JUST CAUSE EXISTS NOR WAS
THERE DUE PROCESS OBSERVED IN THE DISMISSAL OF THE
PRIVATE RESPONDENT BECAUSE THE COMPUTER PRINTOUTS
WHICH PROVE JUST CAUSE AND DUE PROCESS ARE NOT
ADMISSIBLE IN EVIDENCE.
2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS
OF ITS JURISDICTION IN HOLDING THAT EVEN IF THE COMPUTER
PRINTOUTS WERE ADMISSIBLE, PETITIONER FAILED TO SATISFY
DUE PROCESS.
We find petitioners’ contention to be without merit.
First. Petitioners argue that the computer print-outs submitted by
them need not be identified or authenticated according to the rules of
procedure in regular courts in order for the same to be admissible in
evidence. They contend that technical rules of evidence do not apply
to administrative/labor cases and because of a relaxation of the rules
of evidence, private respondent was in fact allowed by the labor
arbiter to adduce additional evidence even after a decision had been
rendered.
It is indeed true that administrative agencies, such as the NLRC, are
not bound by the technical rules of procedure and evidence in the
adjudication of cases. This was the reason private respondent was
allowed to submit additional evidence even after the case was deemed
submitted for resolution by the labor arbiter. The practice of admitting
additional evidence on appeal in labor cases has been sanctioned by
this Court. However, the liberality of procedure in administrative
actions is subject to limitations imposed by basic requirements of due
process. As this Court said in Ang Tibay v. CIR, the provision for
flexibility in administrative procedure “does not go so far as to justify
orders without a basis in evidence having rational probative value.”
More specifically, as held in Uichico v. NLRC:
4
It is true that administrative and quasi-judicial bodies like the NLRC
are not bound by the technical rules of procedure in the adjudication
of cases. However, this procedural rule should not be construed as a
license to disregard certain fundamental evidentiary rules. While the
rules of evidence prevailing in the courts of law or equity are not
controlling in proceedings before the NLRC, the evidence presented
before it must at least have a modicum of admissibility for it to be
given some probative value. The Statement of Profit and Losses
submitted by Crispa, Inc. to prove its alleged losses, without the
accompanying signature of a certified public accountant or audited by
an independent auditor, are nothing but self-serving documents which
ought to be treated as a mere scrap of paper devoid of any probative
value.
The computer print-outs, which constitute the only evidence of
petitioners, afford no assurance of their authenticity because they are
unsigned. The decisions of this Court, while adhering to a liberal view
in the conduct of proceedings before administrative agencies, have
nonetheless consistently required some proof of authenticity or
reliability as condition for the admission of documents.
In Rizal Workers Union v. Ferrer-Calleja, this Court struck down the
decision of the Director of Labor Relations which was based on an
unsigned and unidentified manifesto. It was held:
From even a perfunctory assessment, it becomes apparent that the
“evidence” upon which said decision is professedly based does not
come up to that standard of substantiality.
It is of course also a sound and settled rule that administrative
agencies performing quasi-judicial functions are unfettered by the
rigid technicalities of procedure observed in the courts of law, and this
so that disputes brought before such bodies may be resolved in the
most expeditious and inexpensive manner possible. But what is
involved here transcends mere procedural technicality and concerns
the more paramount principles and requirements of due process,
which may not be sacrificed to speed or expediency . . . The clear
message of [Article 221 of the Labor Code] is that even in the
disposition of labor cases, due process must never be subordinated to
expediency or dispatch. Upon this principle, the unidentified
documents relied upon by respondent Director must be seen and
taken for what they are, mere inadmissible hearsay. They cannot, by
any stretch of reasoning, be deemed substantial evidence of the
election frauds complained of.
Likewise, in the case of EMS Manpower & Placement Services v. NLRC,
the employer submitted a photocopy of a telex which supposedly
shows that the employee was guilty of “serious misconduct” and which
became the basis of her dismissal. This Court ruled that the telex, a
“single document, totally uncorroborated and easily concocted or
fabricated to suit one’s personal interest and purpose,” was
insufficient to uphold the employer’s defense.
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held
as incompetent unsigned daily time records presented to prove that
the employee was neglectful of his duties:
Indeed, the [DTRs] annexed to the present petition would tend to
establish private respondent’s neglectful attitude towards his work
duties as shown by repeated and habitual absences and tardiness and
propensity for working undertime for the year 1992. But the problem
with these DTRs is that they are neither originals nor certified true
copies. They are plain photocopies of the originals, if the latter do
exist. More importantly, they are not even signed by private
respondent nor by any of the employer’s representatives . . .
In the case at bar, a specimen of the computer print-out submitted by
petitioners reads:
Date and time 10/12/90 09:23:1
From: REYES VV—MNLVM1
To: ISRAEL—MNLRVM Israel, A.D.
SEC: I IBM INTERNAL USE ONLY
5
Subject:
Angel, have been trying to pin you down for a talk the past couple of
days. Whatever happened to our good discussion 2 weeks ago? I
thought you would make an effort to come in on time from then on?
If you have problems which prevent you from coming in on time, let
me know because I would really like to help if I can. The sum of all
your quotas is less than mine so I really need all of you pitching in.
Kindly take a look at your proofs in-tray as there are some to do’s
which are pending. Acts such as St. Louis U. and NEECO should be
worth looking into as they’ve been inquiring about upgrading their
very old boxes. If you are too tied up for these accounts do let me
know so I can reassign. By Monday morning please. Let’s give it that
final push for the branch!
==========================================
Regards from the APPLICATION
SYSTEMS MARKETING group
Victor V. Reyes—Marketing Manager
MNLVM 1 (REYES,VV)
T (832)8192-279
==========================================
Not one of the 18 print-out copies submitted by petitioners was ever
signed, either by the sender or the receiver. There is thus no
guarantee that the message sent was the same message received. As
the Solicitor General pointed out, the messages were transmitted to
and received not by private respondent himself but his computer.
Neither were the print-outs certified or authenticated by any company
official who could properly attest that these came from IBM’s computer
system or that the data stored in the system were not and/or could
not have been tampered with before the same were printed out. It is
noteworthy that the computer unit and system in which the contents
of the print-outs were stored were in the exclusive possession and
control of petitioners since after private respondent was served his
termination letter, he had no more access to his computer.
Second. Even if the computer print-outs were admissible, they would
not suffice to show that private respondent’s dismissal was justified.
Petitioners’ contention is that private respondent was repeatedly
warned through computer messages for coming in late or not
reporting at all to the office during the period May 1990-June 1991
but he never denied the allegations. Therefore, he must be deemed
to have admitted these allegations. But the burden of proving that the
dismissal was for just cause is on petitioners. They cannot simply rely
on any admission by private respondent implied from his failure to
deny the alleged computer messages to him which he denied he had
ever received. On the other hand, private respondent’s additional
evidence, consisting of DTRs and pay slips, show that he did not incur
unexcused absences or tardiness or that he suffered deduction in pay
on account of such absences or tardiness.
Indeed, petitioners could have easily proven their allegations by
presenting private respondent’s DTRs. Since these were in petitioners’
possession, their non-production thereof raises the presumption that
if presented they would be adverse to petitioners. This is precisely
what the best evidence rule guards against.
The purpose of the rule requiring the production of the best evidence
is the prevention of fraud, because if a party is in possession of such
evidence and withholds it, and seeks to substitute inferior evidence in
its place, the presumption naturally arises that the better evidence is
withheld for fraudulent purposes which its production would expose
and defeat.
Private respondent’s DTRs for the period June 1, 1990- August 30,
1990 show that while his attendance record may not have been
perfect, it was at least satisfactory. The days when private respondent
6
did not report to the office were credited either as vacation or as sick
leaves. On days when he was away on business trips, his destination
was shown. The DTRs were signed by petitioner Victor Reyes.
It is said that the DTRs presented were only for the period when
private respondent’s attendance was excellent; he took care not to
submit his DTRs for other months during which he was often late in
coming to office. As the Solicitor General has pointed out, however, it
was precisely during that period of June 1, 1990-August 30, 1990
when, according to the printouts submitted by petitioners, private
respondent was often late or absent.
Nor is there proof to support petitioners’ allegation that it was private
respondent’s secretary and not him who often signed the attendance
sheet. Indeed, petitioners did not present private respondent’s
secretary or, at the very least, attach an affidavit sworn to by her to
prove their allegations and thus dispute the DTRs presented by private
respondent. This, notwithstanding ample opportunity to do so. On the
other hand, as already stated, the DTRs, showing private respondent’s
good attendance, were signed by petitioner Victor Reyes himself, and
no good reason has been shown why they cannot be relied upon in
determining private respondent’s attendance.
Third. Even assuming the charges of habitual tardiness and
absenteeism were true, such offenses do not warrant private
respondent’s dismissal. He has not been shown to have ever
committed any infraction of company rules during his sixteen-year
stint in the company. Although it is alleged that he failed to attend
important client meetings and gave false representations to a valued
client to cover his tracks, there is no record finding him guilty of such
offenses. Dismissal has always been regarded as the ultimate penalty.
The fact that lapses in private respondent’s attendance record may
have occurred only during his final year in the company, after a long
period of exemplary performance, makes petitioners’ contention
dubious. While it is true that long years of service is no guarantee
against dismissal for wrongdoing, at least the employee’s record does
provide an index to his work. In case doubt exists between the
evidence presented by the employer and that presented by the
employee, the scales of justice must be tilted in favor of the latter.
Fourth. The print-outs likewise failed to show that private respondent
was allowed due process before his dismissal.
The law requires an employer to furnish the employee two written
notices before termination of his employment may be ordered. The
first notice must inform him of the particular acts or omissions for
which his dismissal is sought, the second of the employer’s decision
to dismiss the employee after he has been given the opportunity to be
heard and defend himself.
These requirements were not observed in this case. As noted earlier,
there is no evidence that there was an exchange of communication
between petitioners and private respondent regarding the latter’s
supposed substandard performance. Private respondent has
consistently denied, however, that he was ever advised of the charges
hurled against him. The so-called one-on-one consultations or
“personal counsellings” mentioned in the print-outs between petitioner
Reyes and private respondent concerning the latter’s work habits do
not satisfy the requirements of due process, as we had occasion to
say in Pono v. NLRC.
Consultations or conferences may not be a substitute for the actual
holding of a hearing. Every opportunity and assistance must be
accorded to the employee by the management to enable him to
prepare adequately for his defense, including legal representation.
In Ruffy v. NLRC, this Court held that what would qualify as sufficient
or “ample opportunity,” as required by law, would be “every kind of
assistance that management must accord to the employee to enable
him to prepare adequately for his defense.” No such opportunity was
given to private respondent in this case. He was simply served his
termination notice without being heard in his defense.
Fifth. Petitioners allege that the NLRC, after concluding that the
evidence submitted by them were not properly identified or
7
authenticated, should have remanded the case to the arbiter for As regards petitioner’s contention that a hearing has to be conducted
“clarificatory” hearing. to fully ventilate the issues in the case, . . . [s]uffice it to state that
nonverbal devices such as written explanations, affidavits, position
A formal hearing was not de rigueur. The 1994 Rules of Procedure of
papers or other pleadings can establish just as clearly and concisely
the NLRC, §4 provides:
an aggrieved party’s defenses. Petitioner was amply provided with the
Immediately after the submission by the parties of their position opportunity to present evidence that private respondents were not its
papers/memorandum, the Labor Arbiter shall, motu proprio, employees. Indeed, it was petitioner’s failure to present substantial
determine whether there is a need for a formal trial or hearing. At this evidence to buttress its claims that worked to its disadvantage and not
stage, he may, at his discretion and for the purpose of making such the absence of a full-blown hearing before the public respondent.
determination, ask clarificatory questions to further elicit facts or
WHEREFORE, the petition is DISMISSED and the decision of the NLRC,
information, including but not limited to the subpoena of relevant
dated April 15, 1994, is hereby AFFIRMED.
documentary evidence, if any, from any party or witness.
SO ORDERED.
As held by the NLRC:
Bellosillo (Chairman), Puno, Quisumbing and Buena, JJ., concur.
Aside from these computer print-outs, respondents have not
presented any other evidence to prove that complainant was ever Petition dismissed, judgment affirmed.
called for investigation nor his side heard prior to receipt of the
Notes.—An employee is not afforded “ample opportunity to be heard”
termination letter dated June 27, 1991. In fact, even if we consider
these computer print-outs, respondents still failed to satisfy the if the notice given to him is inadequate. (Philippine Rabbit Bus Lines,
Inc. vs. National Labor Relations Commission, 279 SCRA 106 [1997])
requirements of procedural due process . . . . In this particular case,
we observe that there is failure on the part of respondents to prove The rule is well settled that the essence of due process in
the existence of a legal cause. The evidence presented before the administrative proceedings is that a party be afforded a reasonable
Labor Arbiter did not sufficiently and clearly support the allegation of opportunity to be heard and to submit any evidence he may have in
respondents that complainant committed habitual absences and support of his defense. (Larin vs. Executive Secretary, 280 SCRA 713
tardiness resulting into inefficiency. [1997])
In spite of this finding, petitioners failed to adduce additional evidence ——o0o——
when they moved for a reconsideration of the NLRC decision or when
they filed the instant petition. Despite the opportunities afforded them,
petitioners failed to substantiate their allegations. Neither have they
shown sufficient reasons to convince this Court that, if the case were
to be remanded to the arbiter for a formal hearing, they would be able
to present evidence which they could not have presented during the
initial stages of this case. As we held in Megascope General Services
v. NLRC:

8
 ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO,
respondent
A.M. No. CA-05-18-P. April 12, 2005
(Formerly OCA I.P.I. No. 05-80-CA-P)
Criminal Law; Extortion; Entrapment; Instigation; Distinction Between
Entrapment and Instigation. — In entrapment, ways and means are
resorted to for the purpose of ensnaring and capturing the law-
breakers in the execution of their criminal plan. On the other hand, in
instigation, the instigator practically induces the would-be defendant
into the commission of the offense, and he himself becomes a co-
principal.
Same; Same; Evidence; Ephemeral electronic communications shall
be proven by the testimony of a person who was a party to the same
or who has personal knowledge thereof; Court has no doubt as to the
probative value of the text messages as evidence in determining the
guilt or lack thereof of respondent. — Under Section 2, Rule 11 of the
Rules on Electronic Evidence, “Ephemeral electronic communications
shall be proven by the testimony of a person who was a party to the
same or who has personal knowledge thereof....” In this case,
complainant who was the recipient of said messages and therefore
had personal knowledge thereof testified on their contents and import.
Respondent herself admitted that the cellphone number reflected in
complainant’s cellphone from which the messages originated was
hers. Moreover, any doubt respondent may have had as to the
admissibility of the text messages had been laid to rest when she and
her counsel signed and attested to the veracity of the text messages
between her and complainant. It is also well to remember that in
administrative cases, technical rules of procedure and evidence are
not strictly applied. We have no doubt as to the probative value of the
text messages as evidence in determining the guilt or lack thereof of
respondent in this case.
Administrative Law; Courts; It is not in accord with ordinary human
experience for an honest government employee to make up stories
that would make party-litigants believe that court decisions may be
bought and sold. — If indeed, respondent had no intention of
committing any wrongdoing, it escapes the Court why she had to
make up stories merely to test if complainant could make good on his
alleged boast that he could come up with a million pesos. It is not in
accord with ordinary human experience for an honest government
employee to make up stories that would make party-litigants believe
that court decisions may be bought and sold.
Same; Same; The conduct or behavior of all officials of an agency
involved in the administration of justice, from the Presiding Judge to
the most junior clerk, should be circumscribed with the heavy burden
of responsibility. — Respondent having worked for the government for
twenty-four (24) years, nineteen (19) of which have been in the CA,
should have known very well that court employees are held to the
strictest standards of honesty and integrity. Their conduct should at
all times be above suspicion. As held by this Court in a number of
cases, “The conduct or behavior of all officials of an agency involved
in the administration of justice, from the Presiding Judge to the most
junior clerk, should be circumscribed with the heavy burden of
responsibility.” Their conduct must, at all times be characterized by
among others, strict propriety and decorum in order to earn and
maintain the respect of the public for the judiciary.
Same; Same; Respondent Elvira Cruz-Apao is found GUILTY of GRAVE
MISCONDUCT and violation of Sections 1 and 2 of the CODE OF
CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED
from government service. — WHEREFORE, premises considered,
respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT
and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR
COURT PERSONNEL and is accordingly DISMISSED from government
service, with prejudice to re-employment in any branch,
instrumentality or agency of the government, including government-
9
owned and controlled corporations. Her retirement and all benefits
except accrued leave credits are hereby FORFEITED.
ADMINISTRATIVE MATTER in the Supreme Court. Dishonesty and
Grave Misconduct.
The facts are stated in the opinion of the Court.
Vicente A. Garcia for respondent.
PER CURIAM:
What brings our judicial system into disrepute are often the actuations
of a few erring court personnel peddling influence to party-litigants,
creating the impression that decisions can be bought and sold,
ultimately resulting in the disillusionment of the public. This Court has
never wavered in its vigilance in eradicating the so-called “bad eggs”
in the judiciary. And whenever warranted by the gravity of the offense,
the supreme penalty of dismissal in an administrative case is meted to
erring personnel.
The above pronouncement of this Court in the case of Mendoza vs.
Tiongson is applicable to the case at bar.
This is an administrative case for Dishonesty and Grave Misconduct
against Elvira Cruz-Apao (Respondent), Executive Assistant II of the
Acting Division Clerk of Court of the
Fifteenth (15th) Division, Court of Appeals (CA). The complaint arose
out of respondent’s solicitation of One Million Pesos (P1,000,000.00)
from Zaldy Nuez (Complainant) in exchange for a speedy and
favorable decision of the latter’s pending case in the CA, more
particularly, CA-G.R. SP No. 73460 entitled “PAGCOR vs. Zaldy Nuez.”
Complainant initially lodged a complaint with the Action Center of the
Television program Imbestigador of GMA Network, the crew of which
had accompanied him to the Presidential Anti-Organized Crime
Commission–Special Projects Group (PAOCC-SPG) in Malacañang
where he filed a complaint for extortion against respondent. This led
to the conduct of an entrapment operation by elements of the
Presidential Anti-Organized Crime Task Force (PAOCTF) on 28
September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza
Bldg., corner Taft and United Nations Avenue, Manila, the place where
the supposed hand-over of the money was going to take place.
Respondent’s apprehension by agents of the PAOCTF in the course of
the entrapment operation prompted then CA Presiding Justice (PJ)
Cancio C. Garcia (now Supreme Court Justice) to issue Office Order
No. 297-04-CG (Order) which created an ad-hoc investigating
committee (Committee). The Committee was specifically tasked
among others to conduct a thorough and exhaustive investigation of
respondent’s case and to recommend the proper administrative
sanctions against her as the evidence may warrant.
In accordance with the mandate of the Order, the Committee
conducted an investigation of the case and issued a Resolution dated
18 October 2004 where it concluded that a prima facie case of
Dishonesty and Serious Misconduct against respondent existed. The
Committee thus recommended respondent’s preventive suspension
for ninety (90) days pending formal investigation of the charges
against her. On 28 January 2005, the Committee submitted a Report
to the new CA Presiding Justice Romeo A. Brawner with its
recommendation that respondent be dismissed from service.
Based on the hearings conducted and the evidence received by the
Committee, the antecedent facts are as follows:
Complainant’s case referred to above had been pending with the CA
for more than two years. Complainant filed an illegal dismissal case
against PAGCOR before the Civil Service Commission (CSC). The CSC
ordered complainant’s reinstatement but a writ of preliminary
injunction and a temporary restraining order was issued by the CA in
favor of PAG-COR, thus complainant was not reinstated to his former
job pending adjudication of the case.16 Desiring an expeditious
decision of his case, complainant sought the assistance of respondent
sometime in July 2004 after learning of the latter’s employment with
the CA from her sister, Magdalena David. During their first telephone
10
conversation and thereafter through a series of messages they
exchanged via SMS, complainant informed respondent of the
particulars of his pending case. Allegedly, complainant thought that
respondent would be able to advise him on how to achieve an early
resolution of his case.
However, a week after their first telephone conversation, respondent
allegedly told complainant that a favorable and speedy decision of his
case was attainable but the person who was to draft the decision was
in return asking for One Million Pesos (P1,000,000.00).
Complainant expostulated that he did not have that kind of money
since he had been jobless for a long time, to which respondent replied,
“Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera,
pasensiya na.” Complainant then tried to ask for a reduction of the
amount but respondent held firm asserting that the price had been
set, not by her but by the person who was going to make the decision.
Respondent even admonished complainant with the words “Wala tayo
sa palengke iho!” when the latter bargained for a lower amount.
Complainant then asked for time to determine whether or not to pay
the money in exchange for the decision. Instead, in August of 2004,
he sought the assistance of Imbestigador. The crew of the TV program
accompanied him to PAOCCF-SPG where he lodged a complaint
against respondent for extortion. Thereafter, he communicated with
respondent again to verify if the latter was still asking for the money
and to set up a meeting with her. Upon learning that respondent’s
offer of a favorable decision in exchange for One Million Pesos
(P1,000,000.00) was still standing, the plan for the entrapment
operation was formulated by Imbestigador in cooperation with the
PAOCC.
On 24 September 2004, complainant and respondent met for the first
time in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the place
where the entrapment operation was later conducted. Patricia Siringan
(Siringan), a researcher of Imbestigador, accompanied complainant
and posed as his sister-in-law. During the meeting, complainant
clarified from respondent that if he gave the amount of One Million
Pesos (P1,000,000.00), he would get a favorable decision. This was
confirmed by the latter together with the assurance that it would take
about a month for the decision to come out. Respondent also
explained that the amount of One Million Pesos (P1,000,000.00)
guaranteed a favorable decision only in the CA but did not extend to
the Supreme Court should the case be appealed later.
When respondent was asked where the money will go, she claimed
that it will go to a male researcher whose name she refused to divulge.
The researcher was allegedly a lawyer in the CA Fifth (5th) Division
where complainant case was pending. She also claimed that she will
not get any part of the money unless the researcher decides to give
her some.
Complainant tried once again to bargain for a lower amount during
the meeting but respondent asserted that the amount was fixed. She
even explained that this was their second transaction and the reason
why the amount was closed at One Million Pesos (P1,000,000.00) was
because on a previous occasion, only Eight Hundred Thousand Pesos
(P800,000.00) was paid by the client despite the fact that the amount
had been pegged at One Million Three Hundred Thousand Pesos
(P1,300,000.00). Complainant then proposed that he pay a down
payment of Seven Hundred Thousand Pesos (P700,000.00) while the
balance of Three Hundred Thousand Pesos (P300,000.00) will be paid
once the decision had been released. However, respondent refused to
entertain the offer, she and the researcher having learned their lesson
from their previous experience for as then, the client no longer paid
the balance of Five Hundred Thousand Pesos (P500,000.00) after the
decision had come out.
Complainant brought along copies of the documents pertinent to his
case during the first meeting. After reading through them, respondent
allegedly uttered, “Ah, panalo ka.” The parties set the next meeting
date at lunchtime on 28 September 2004 and it was understood that
the money would be handed over by complainant to respondent then.
11
On the pre-arranged meeting date, five (5) PAOCTF agents, namely:
Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato
Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano,
and PO2 Edgar delos Reyes arrived at around 11:30 in the morning at
Jollibee. Nuez and Siringan arrived at past noon and seated
themselves at the table beside the one occupied by the two (2) agents,
Banay and Villena. Complainant had with him an unsealed long brown
envelope containing ten (10) bundles of marked money and paper
money which was to be given to respondent. The envelope did not
actually contain the One Million Pesos (P1,000,000.00) demanded by
respondent, but instead contained paper money in denominations of
One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and
One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.
There were also ten (10) authentic One Hundred Peso (P100.00) bills
which had been previously dusted with ultra-violet powder by the
PAOCTF. The three other PAOCTF agents were seated a few tables
away and there were also three (3) crew members from Imbestigador
at another table operating a mini DV camera that was secretly
recording the whole transaction.
Respondent arrived at around 1:00 p.m. She appeared very nervous
and suspicious during the meeting. Ironically, she repeatedly said that
complainant might entrap her, precisely like those that were shown
on Imbestigador. She thus refused to receive the money then and
there. What she proposed was for complainant and Siringan to travel
with her in a taxi and drop her off at the CA where she would receive
the money.
More irony ensued. Respondent actually said that she felt there were
policemen around and she was afraid that once she took hold of the
envelope complainant proffered, she would suddenly be arrested and
handcuffed. At one point, she even said, “Ayan o, tapos na silang
kumain, bakit hindi pa sila umaalis?,” referring to Banay and Villena at
the next table. To allay respondent’s suspicion, the two agents stood
up after a few minutes and went near the staircase where they could
still see what was going on.
Complainant, respondent and Siringan negotiated for almost one hour.
Complainant and Siringan bargained for a lower price but respondent
refused to accede. When respondent finally touched the unsealed
envelope to look at the money inside, the PAOCTF agents converged
on her and invited her to the Western Police District (WPD)
Headquarters at United Nations Avenue for questioning. Respondent
became hysterical as a commotion ensued inside the restaurant.
On the way to the WPD on board the PAOCTF vehicle, Banay asked
respondent why she went to the restaurant. The latter replied that she
went there to get the One Million Pesos (P1,000,000.00).
Respondent was brought to the PNP Crime Laboratory at the WPD
where she was tested and found positive for ultra-violet powder that
was previously dusted on the money. She was later detained at the
WPD Headquarters.
At seven o’clock in the evening of 28 September 2004, respondent
called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her
immediate superior in the CA at the latter’s house. She tearfully
confessed to Atty. Gepty that “she asked for money for a case and
was entrapped by police officers and the media.” Enraged at the news,
Atty. Gepty asked why she had done such a thing to which respondent
replied, “Wala lang ma’am, sinubukan ko lang baka makalusot.”
Respondent claimed that she was ashamed of what she did and
repented the same. She also asked for Atty. Gepty’s forgiveness and
help. The latter instead reminded respondent of the instances when
she and her co-employees at the CA were exhorted during office
meetings never to commit such offenses.
Atty. Gepty rendered a verbal report of her conversation with their
division’s chairman, Justice Martin S. Villarama. She reduced the
report into writing and submitted the same to then PJ Cancio Garcia
on 29 September 2004. She also later testified as to the contents of
her report to the Committee.
12
During the hearing of this case, respondent maintained that what
happened was a case of instigation and not an entrapment. She
asserted that the offer of money in exchange for a favorable decision
came not from her but from complainant. To support her contention,
she presented witnesses who testified that it was complainant who
allegedly offered money to anyone who could help him with his
pending case. She likewise claimed that she never touched the money
on 28 September 2004, rather it was Capt. Maclang who forcibly held
her hands and pressed it to the envelope containing the money. She
thus asked that the administrative case against her be dismissed.
This Court is not persuaded by respondent’s version. Based on the
evidence on record, what happened was a clear case of entrapment,
and not instigation as respondent would like to claim.
In entrapment, ways and means are resorted to for the purpose of
ensnaring and capturing the law-breakers in the execution of their
criminal plan. On the other hand, in instigation, the instigator
practically induces the would-be defendant into the commission of the
offense, and he himself becomes a co-principal.
In this case, complainant and the law enforcers resorted to
entrapment precisely because respondent demanded the amount of
One Million Pesos (P1,000,000.00) from complainant in exchange for
a favorable decision of the latter’s pending case. Complainant’s
narration of the incidents which led to the entrapment operation are
more in accord with the circumstances that actually transpired and are
more credible than respondent’s version.
Complainant was able to prove by his testimony in conjunction with
the text messages from respondent duly presented before the
Committee that the latter asked for One Million Pesos (P1,000,000.00)
in exchange for a favorable decision of the former’s pending case with
the CA. The text messages were properly admitted by the Committee
since the same are now covered by Section 1(k), Rule 2 of the Rules
on Electronic Evidence65 which provides:
“Ephemeral electronic communication” refers to telephone
conversations, text messages... and other electronic forms of
communication the evidence of which is not recorded or retained.”
Under Section 2, Rule 11 of the Rules on Electronic Evidence,
“Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or who has
personal knowledge thereof....” In this case, complainant who was the
recipient of said messages and therefore had personal knowledge
thereof testified on their contents and import. Respondent herself
admitted that the cellphone number reflected in complainant’s
cellphone from which the messages originated was hers. Moreover,
any doubt respondent may have had as to the admissibility of the text
messages had been laid to rest when she and her counsel signed and
attested to the veracity of the text messages between her and
complainant. It is also well to remember that in administrative cases,
technical rules of procedure and evidence are not strictly applied. We
have no doubt as to the probative value of the text messages as
evidence in determining the guilt or lack thereof of respondent in this
case.
Complainant’s testimony as to the discussion between him and
respondent on the latter’s demand for One Million Pesos
(P1,000,000.00) was corroborated by the testimony of a disinterested
witness, Siringan, the reporter of Imbestigador who was present when
the parties met in person. Siringan was privy to the parties’ actual
conversation since she accompanied complainant on both meetings
held on 24 and 28 of September 2004 at Jollibee.
Respondent’s evidence was comprised by the testimony of her
daughter and sister as well as an acquaintance who merely testified
on how respondent and complainant first met. Respondent’s own
testimony consisted of bare denials and self-serving claims that she
did not remember either the statements she herself made or the
contents of the messages she sent. Respondent had a very selective
memory made apparent when clarificatory questions were
propounded by the Committee.
13
When she was asked if she had sent the text messages contained in
complainant’s cellphone and which reflected her cellphone number,
respondent admitted those that were not incriminating but claimed
she did not remember those that clearly showed she was transacting
with complainant. Thus, during the 17 November 2004 hearing, where
respondent was questioned by Justice Salazar-Fernando, the following
transpired:
Q: After reading those text messages, do you remember having made
those text messages?
(Respondent)
A: Only some of these, your honors.
Justice Salazar-Fernando: Which one?
A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang
unahan po, your Honors.
Q: What else?
A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or
isama niya sa kanya si Len David.
Q: Okay, You remember having texted Zaldy Nuez on September 23,
2004 at 1309 which was around 1:09 in the afternoon and you said
“di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m.
Room 107 Centennial Building.
A: Yes, your Honors.
Q: And on September 23, 2004 at 1731 which was around 5:31 in the
afternoon you again texted Zaldy Nuez and you said “Sige bukas nang
tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala
ka ng I.D. para makilala kita o isama mo si Len David.
A: Opo, your Honors.
Q: How about on September 23 at 5:05 in the afternoon when you
said “Di pwede kelan mo gusto fixed price na iyon.”
A: I don’t remember that, your Honors.
Q: Again on September 23 at 5:14 p.m. you said “Alam mo di ko iyon
price ang nagbigay noon yung gagawa. Wala ako doon.” You don’t
also remember this?
A: Yes, your Honors.
Q: September 27 at 1:42 p.m. “Oo naman ayusin nyo yung hindi
halatang pera.” You also don’t remember that?
A: Yes Your Honors.
Q: September 27 at 1:30 in the afternoon, “Di na pwede sabi sa akin.
Pinakaiusapan ko na nga ulit iyon.” You don’t remember that?
A: No, your Honors.
Respondent would like this Court to believe that she never had any
intention of committing a crime, that the offer of a million pesos for a
favorable decision came from complainant and that it was complainant
and the law enforcers who instigated the whole incident.
Respondent thus stated that she met with complainant only to tell the
latter to stop calling and texting her, not to get the One Million Pesos
(P1,000,000.00) as pre-arranged.
This claim of respondent is preposterous to say the least. Had the offer
of a million pesos really come from complainant and had she really
intended to stop the latter from corrupting her, she could have simply
refused to answer the latter’s messages and calls. This she did not do.
She answered those calls and messages though she later claimed she
did not remember having sent the same messages to complainant.
She could also have reported the matter to the CA Presiding Justice,
an action which respondent admitted during the hearing was the
proper thing to do under the circumstances. But this course of action
14
she did not resort to either, allegedly because she never expected
things to end this way.
While claiming that she was not interested in complainant’s offer of a
million pesos, she met with him not only once but twice, ostensibly,
to tell the latter to stop pestering her. If respondent felt that telling
complainant to stop pestering her would be more effective if she did
it in person, the same would have been accomplished with a single
meeting. There was no reason for her to meet with complainant again
on 28 September 2004 unless there was really an understanding
between them that the One Million Pesos (P1,000,000.00) will be
handed over to her then. Respondent even claimed that she became
afraid of complainant when she learned that the latter had been
dismissed by PAGCOR for using illegal drugs. This notwithstanding,
she still met with him on 28 September 2004.
Anent complainant’s narration of respondent’s refusal to reduce the
amount of One Million Pesos (P1,000.000.00) based on the lesson
learned from a previous transaction, while admitting that she actually
said the same, respondent wants this Court to believe that she said it
merely to have something to talk about. If indeed, respondent had no
intention of committing any wrongdoing, it escapes the Court why she
had to make up stories merely to test if complainant could make good
on his alleged boast that he could come up with a million pesos. It is
not in accord with ordinary human experience for an honest
government employee to make up stories that would make party-
litigants believe that court decisions may be bought and sold. Time
and again this Court has declared, thus:
“Everyone in the judiciary bears a heavy burden of responsibility for
the proper discharge of his duty and it behooves everyone to steer
clear of any situations in which the slightest suspicion might be cast
on his conduct. Any misbehavior on his part, whether true or only
perceived, is likely to reflect adversely on the administration of
justice.”
Respondent having worked for the government for twenty four (24)
years, nineteen (19) of which have been in the CA, should have known
very well that court employees are held to the strictest standards of
honesty and integrity. Their conduct should at all times be above
suspicion. As held by this Court in a number of cases, “The conduct or
behavior of all officials of an agency involved in the administration of
justice, from the Presiding Judge to the most junior clerk, should be
circumscribed with the heavy burden of responsibility.” Their conduct
must, at all times be characterized by among others, strict propriety
and decorum in order to earn and maintain the respect of the public
for the judiciary.
Respondent’s actuations from the time she started communicating
with complainant in July 2004 until the entrapment operation on 28
September 2004 show a lack of the moral fiber demanded from court
employees. Respondent’s avowals of innocence notwithstanding, the
evidence clearly show that she solicited the amount of One Million
Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision. The testimony of Atty. Gepty, the recipient of respondent’s
confession immediately after the entrapment operation, unmistakably
supports the finding that respondent did voluntarily engage herself in
the activity she is being accused of.
Respondent’s solicitation of money from complainant in exchange for
a favorable decision violates Canon I of the Code of Conduct for Court
Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-
06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court
Personnel expressly provide:
“SECTION 1. Court personnel shall not use their official position to
secure unwarranted benefits, privileges or exemption for themselves
or for others.”
“SECTION 2. Court personnel shall not solicit or accept any gift, favor
or benefit based on any explicit or implicit understanding that such
gift, favor or benefit shall influence their official actions.” (Italics
supplied)
15
It is noteworthy that the penultimate paragraph of the Code of
Conduct for Court Personnel specifically provides:
INCORPORATION OF OTHER RULES
“SECTION 1. All provisions of the law, Civil Service rules, and issuances
of the Supreme Court governing the conduct of public officers and
employees applicable to the judiciary are deemed incorporated into
this Code.”
By soliciting the amount of One Million Pesos (P1,000,000.00) from
complainant, respondent committed an act of impropriety which
immeasurably affects the honor and dignity of the judiciary and the
people’s confidence in it.
In the recent case of Aspiras vs. Abalos, complainant charged
respondent, an employee of the Records Section, Office of the Court
Administrator (OCA), Supreme Court for allegedly deceiving him into
giving her money in the total amount of Fifty Two Thousand Pesos
(P52,000.00) in exchange for his acquittal in a murder case on appeal
before the Supreme Court. It turned out that respondent’s
representation was false because complainant was subsequently
convicted of murder and sentenced to suffer the penalty of reclusion
perpetua by the Supreme Court.
The Supreme Court en banc found Esmeralda Abalos guilty of serious
misconduct and ordered her dismissal from the service. This Court
aptly held thus:
“In Mirano vs. Saavedra, this Court emphatically declared that a public
servant must exhibit at all times the highest sense of honesty and
integrity. The administration of justice is a sacred task, and by the
very nature of their duties and responsibilities, all those involved in it
must faithfully adhere to, hold inviolate, and invigorate the principle
that public office is a public trust, solemnly enshrined in the
Constitution.”
Likewise, in the grave misconduct case against Datu Alykhan T.
Amilbangsa of the Shari’a Circuit Court, Bengo, Tawi-Tawi, this Court
stated:
“No position demands greater moral righteousness and uprightness
from the occupant than the judicial office. Those connected with the
dispensation of justice bear a heavy burden of responsibility. Court
employees in particular, must be individuals of competence, honesty
and probity charged as they are with safeguarding the integrity of the
court.... The High Court has consistently held that persons involved in
the administration of justice ought to live up to the strictest standards
of honesty and integrity in the public service. He should refrain from
financial dealings which would interfere with the efficient performance
of his duties. The conduct required of court personnel must always be
beyond reproach.”
The following pronouncement of this Court in the case of Yrastorza,
Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu City is also worth
remembering:
“Court employees bear the burden of observing exacting standards of
ethics and morality. This is the price one pays for the honor of working
in the judiciary. Those who are part of the machinery dispensing
justice from the lowliest clerk to the presiding judge must conduct
themselves with utmost decorum and propriety to maintain the
public’s faith and respect for the judiciary. Improper behavior exhibits
not only a paucity of professionalism at the workplace but also a great
disrespect to the court itself. Such demeanor is a failure of
circumspection demanded of every public official and employee.”
In view of the facts narrated above and taking into account the
applicable laws and jurisprudence, the Committee in their Report
recommended that respondent be dismissed from government service
for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1
of the Code of Conduct for Court Personnel.
16
Finding the Committee’s recommendation to be supported by more
than substantial evidence and in accord with the applicable laws and
jurisprudence, the recommendation is well taken.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is

found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1
and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is
accordingly DISMISSED from government service, with prejudice to
re-employment in any branch, instrumentality or agency of the
government, including government-owned and controlled
corporations. Her retirement and all benefits except accrued leave
credits are hereby FORFEITED.

SO ORDERED.

Davide, Jr. (C.J.), Puno, Panganiban, Quisumbing, Ynares-

Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ.,
concur.

Garcia, J., No part. I ordered her investigation as CA PJ.

Elvira Cruz-Apao dismissed from service for grave misconduct and

violation of Sections 1 and 2 of the Code of Conduct for Court
Personnel, with prejudice to re-employment in government service.

Note.—Conduct of every personnel connected with the courts should

at all times be circumspect to preserve the integrity and dignity of our
courts of justice. (Hernandez vs. Aribuabo, 347 SCRA 1 [2000])

——o0o——

17
 NATIONAL POWER CORPORATION, petitioner, vs. HON.
RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br.
19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING,
INCORPORATED, respondents
G.R. No. 170491. April 3, 2007
Evidence; Electronic Documents; Words and Phrases; An electronic
document refers to information or the representation of information,
data, figures, symbols or other models of written expression,
described or however represented, by which a right is established or
an obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed,
retrieved or produced electronically.—An “electronic document” refers
to information or the representation of information, data, figures,
symbols or other models of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and any
printout, readable by sight or other means which accurately reflects
the electronic data message or electronic document. The rules use the
word “information” to define an electronic document received,
recorded, transmitted, stored, processed, retrieved or produced
electronically. This would suggest that an electronic document is
relevant only in terms of the information contained therein, similar to
any other document which is presented in evidence as proof of its
contents. However, what differentiates an electronic document from
a paper-based document is the manner by which the information is
processed; clearly, the information contained in an electronic
document is received, recorded, transmitted, stored, processed,
retrieved or produced electronically.
Same; Same; Having thus declared that the offered photocopies are
not tantamount to electronic documents, it is consequential that the
same may not be considered as the functional equivalent of their
original as decreed in the law.—A perusal of the information contained
in the photocopies submitted by petitioner will reveal that not all of
the contents therein, such as the signatures of the persons who
purportedly signed the documents, may be recorded or produced
electronically. By no stretch of the imagination can a person’s
signature affixed manually be considered as information electronically
received, recorded, transmitted, stored, processed, retrieved or
produced. Hence, the argument of petitioner that since these paper
printouts were produced through an electronic process, then these
photocopies are electronic documents as defined in the Rules on
Electronic Evidence is obviously an erroneous, if not preposterous,
interpretation of the law. Having thus declared that the offered
photocopies are not tantamount to electronic documents, it is
consequential that the same may not be considered as the functional
equivalent of their original as decreed in the law.
Same; Same; The trial court was correct in rejecting these photocopies
as they violate the best evidence rule and are therefore of no probative
value being incompetent pieces of evidence.—No error can be
ascribed to the court a quo in denying admission and excluding from
the records petitioner’s Exhibits “A,” “C,” “D,” “E,” “H” and its sub-
markings, “I,” “J” and its sub-markings, “K,” “L,” “M” and its sub-
markings, “N” and its sub-markings, “O,” “P” and its submarkings, “Q”
and its sub-markings, and “R.” The trial court was correct in rejecting
these photocopies as they violate the best evidence rule and are
therefore of no probative value being incompetent pieces of evidence.
Before the onset of liberal rules of discovery, and modern technique
of electronic copying, the best evidence rule was designed to guard
against incomplete or fraudulent proof and the introduction of altered
copies and the withholding of the originals. But the modern
justification for the rule has expanded from the prevention of fraud to
a recognition that writings occupy a central position in the law. The
importance of the precise terms of writings in the world of legal
relations, the fallibility of the human memory as reliable evidence of
the terms, and the hazards of inaccurate or incomplete duplicate are
the concerns addressed by the best evidence rule.
18
Same; When the original document has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its execution
or existence and the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses in the
order stated.—When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of
its execution or existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the testimony of
witnesses in the order stated. The offeror of secondary evidence is
burdened to prove the predicates thereof: (a) the loss or destruction
of the original without bad faith on the part of the proponent/offeror
which can be shown by circumstantial evidence of routine practices of
destruction of documents; (b) the proponent must prove by a fair
preponderance of evidence as to raise a reasonable inference of the
loss or destruction of the original copy; and (c) it must be shown that
a diligent and bona fide but unsuccessful search has been made for
the document in the proper place or places. However, in the case at
bar, though petitioner insisted in offering the photocopies as
documentary evidence, it failed to establish that such offer was made
in accordance with the exceptions as enumerated under the above-
quoted rule. Accordingly, we find no error in the Order of the court a
quo denying admissibility of the photocopies offered by petitioner as
documentary evidence.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Arthur D. Lim for respondent Bangpai Shipping Company.
Oben, Ventura and Associates and Ruben O. Fruto for respondent
Wallem Shipping, Inc.
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Civil Procedure, assailing the Decision of the Court of Appeals
in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which
dismissed the Petition for Certiorari filed by the National Power
Corporation seeking to set aside the Order issued by the Regional Trial
Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying
admission and excluding from the records plaintiff’s (herein petitioner)
Exhibits “A,” “C,” “D,” “E,” “H” and its sub-markings, “I,” “J,” and its
sub-markings, “K,” “L,” “M” and its sub-markings, “N” and its sub-
markings, “O,” “P” and its sub-markings, “Q” and its sub-markings,
“R” and “S” and its sub-markings.
On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned
and operated by private respondent Bangpai Shipping, Co., allegedly
bumped and damaged petitioner’s Power Barge 209 which was then
moored at the Cebu International Port. Thus, on 26 April 1996,
petitioner filed before the Cebu RTC a complaint for damages against
private respondent Bangpai Shipping Co., for the alleged damages
caused on petitioner’s power barges.
Thereafter, petitioner filed an Amended Complaint dated 8 July 1996
impleading herein private respondent Wallem Shipping, Inc., as
additional defendant, contending that the latter is a ship agent of
Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc.
filed a Motion to Dismiss which was subsequently denied by public
respondent Judge in an Order dated 20 October 1998. Bangpai
Shipping Co. likewise filed a Motion to Dismiss which was also denied
by public respondent Judge in an Order issued on 24 January 2003.
Petitioner, after adducing evidence during the trial of the case, filed a
formal offer of evidence before the lower court on 2 February 2004
consisting of Exhibits “A” to “V” together with the sub-marked portions
thereof. Consequently, private respondents Bangpai Shipping Co. and
Wallem Shipping, Inc. filed their respective objections to petitioner’s
formal offer of evidence.
19
On 16 November 2004, public respondent judge issued the assailed
order denying the admission and excluding from the records
petitioner’s Exhibits “A,” “C,” “D,” “E,” “H” and its sub-markings, “I,”
“J” and its sub-markings, “K,” “L,” “M” and its sub-markings, “N” and
its sub-markings, “O,” “P” and its sub-markings, “Q” and its sub-
markings, “R” and “S” and its sub-markings. According to the court a
quo:
“The Court finds merit in the objections raised and the motion to strike
out filed respectively by the defendants. The record shows that the
plaintiff has been given every opportunity to present the originals of
the Xerox or photocopies of the documents it offered. It never
produced the originals. The plaintiff attempted to justify the admission
of the photocopies by contending that “the photocopies offered are
equivalent to the original of the document” on the basis of the
Electronic Evidence (Comment to Defendant Wallem Philippines’
Objections and Motion to Strike). But as rightly pointed out in
defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox
copies do not constitute the electronic evidence defined in Section 1
of Rule 2 of the Rules on Electronic Evidence as follows:
“(h) “Electronic document” refers to information or the representation
of information, data, figures, symbols or other models of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally
signed documents and any printout, readable by sight or other means
which accurately reflects the electronic data message or electronic
document. For the purpose of these Rules, the term “electronic
document” may be used interchangeably with “electronic data
message.”
The information in those Xerox or photocopies was not received,
recorded, retrieved or produced electronically. Moreover, such
electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do. Finally,
the required Affidavit to prove the admissibility and evidentiary weight
of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not
executed, much less presented in evidence.
The Xerox or photocopies offered should, therefore, be stricken off
the record. Aside from their being not properly identified by any
competent witness, the loss of the principals thereof was not
established by any competent proof.
xxxx
WHEREFORE, plaintiff’s Exhibits “A,” “C,” “D,” “E,” “H” and its sub-
markings, “I,” “J” and its sub-markings, “K,” “L,” “M” and its sub-
markings, “N” and its sub-markings, “O,” “P” and its submarkings, “Q”
and its sub-markings, and “R” are hereby DENIED admission and
excluded from the records. However, these excluded evidence should
be attached to the records of this case to enable the appellate court
to pass upon them should an appeal be taken from the decision on
the merits to be rendered upon the termination of the trial of this case.
Exhibits “S” and its sub-markings are also DENIED admission for lack
of proper identification since the witness who brought these pictures
expressly admitted that he was not present when the photos were
taken and had not knowledge when the same where taken.”
Upon denial of petitioner’s Motion for Reconsideration in an Order
dated 20 April 2005, petitioner filed a Petition for Certiorari under Rule
65 of the Rules of Civil Procedure before the Court of Appeals
maintaining that public respondent Judge acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in denying the
admission of its Exhibits “A,” “C,” “D,” “E,” “H” and its sub-markings,
“I,” “J” and its sub-markings, “K,” “L,” “M” and its sub-markings, “N”
and its sub-markings, “O,” “P” and its sub-markings, “Q” and its sub-
markings, “R” and “S” and its sub-markings.
On 9 November 2005, the appellate court issued a Decision dismissing
petitioner’s petition for certiorari, the pertinent portions of which
elucidate:
20
After a judicious scrutiny of the record of the case on hand, together
with the rules and jurisprudence which are applicable in the premises,
we have come up with a finding that the petition for certiorari filed in
this case is not meritorious.
It appears that there is no sufficient showing by the petitioner that the
respondent judge acted with grave abuse of discretion in issuing the
assailed orders in Civil Case No. CEB-18662. As what our jurisprudence
tells us, grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as would be equivalent to lack of
jurisdiction x x x.
In the case at bench, what has been shown to the contrary by the
totality of the record on hand is that the respondent judge acted
correctly and within the pale of his sound discretion in issuing the
assailed order, dated November 16, 2004, in Civil Case No. CEB-
18662.
Indeed, it appears that the pieces of petitioner’s documentary
evidence which were denied admission by the respondent judge were
not properly identified by any competent witness. As pointed out by
the respondent Bangpai Shipping Company in its comment on the
petition filed in this case which reproduces some excerpts of the
testimonies in the court a quo of Atty. Marianito De Los Santos, Engr.
Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses
did not have personal knowledge of and participation in the
preparation and making of the pieces of documentary evidence denied
admission by respondent judge x x x. In other words, there was lack
of proper identification of said pieces of documentary evidence. x x x.
Then another ground for denying admission of petitioner’s Exhibits A,
C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge
is that said pieces of documentary evidence were merely photocopies
of purported documents or papers. There is no gainsaying the fact
that the respondent judge acted within the pale of his discretion when
he denied admission of said documentary evidence. Section 3 of Rule
130 of the Rules of Court of the Philippines is very explicit in providing
that, when the subject of inquiry are the contents of documents, no
evidence shall be admissible other than the original documents
themselves, except in certain cases specifically so enumerated therein,
and the petitioner has not shown that the nonpresentation or non-
production of its original documentary pieces of evidence falls under
such exceptions. As aptly pointed out by the respondent judge in the
order issued by him on November 16, 2004:
“x x x The record shows that the plaintiff (petitioner herein) has been
given every opportunity to present the originals of the Xerox or
photocopies of the documents it offered. It never produced said
originals.”
So, the petitioner has only itself to blame for the respondent judge’s
denial of admission of its aforementioned documentary evidence.
Of course, the petitioner tries to contend that the photocopies of
documents offered by it are equivalent to the original documents that
it sought to offer in evidence, based on the Rules on Electronic
Evidence which were in force and effect since August 1, 2001.
However, such a contention is devoid of merit. The pieces of
documentary evidence offered by the petitioner in Civil Case CEB-
18662 which were denied admission by the respondent judge do not
actually constitute as electronic evidence as defined in the Rules on
Electronic Evidence. The informations therein were not received,
retrieved or produced electronically. The petitioner has not adequately
established that its documentary evidence were electronic evidence. it
has not properly authenticated such evidence as electronic
documents, assuming arguendo that they are. Lastly, the petitioner
has not properly established by affidavit pursuant to Rule 9 of the
Rules on Electronic Evidence the admissibility and evidentiary weight
of said documentary evidence.
Thus, by any legal yardstick, it is manifest that the respondent judge
did not commit grave abuse of discretion in denying admission of the
aforementioned documentary evidence of petitioner.
21
But even if it be granted just for the sake of argument that the
respondent judge committed an error in denying the aforementioned
documentary evidence of the petitioner, still the petition for certiorari
filed in this case must fail. Such error would at most be only an error
of law and not an error of jurisdiction. In Lee vs. People, 393 SCRA
397, the Supreme Court of the Philippines said that certiorari will not
lie in case of an error of law. x x x.
WHEREFORE, in view of the foregoing premises, judgment is hereby
rendered by us DISMISSING the petition filed in this case and
AFFIRMING the assailed orders issued by respondent judge in Civil
Case No. CEB-18662.”
Aggrieved by the aforequoted decision, petitioner filed the instant
petition.
The focal point of this entire controversy is petitioner’s obstinate
contention that the photocopies it offered as formal evidence before
the trial court are the functional equivalent of their original based on
its inimitable interpretation of the Rules on Electronic Evidence.
Petitioner insists that, contrary to the rulings of both the trial court
and the appellate court, the photocopies it presented as documentary
evidence actually constitute electronic evidence based on its own
premise that an “electronic document” as defined under Section 1(h),
Rule 2 of the Rules on Electronic Evidence is not limited to information
that is received, recorded, retrieved or produced electronically.
Rather, petitioner maintains that an “electronic document” can also
refer to other modes of written expression that is produced
electronically, such as photocopies, as included in the section’s catch-
all proviso: “any print-out or output, readable by sight or other
means.”
We do not agree.
In order to shed light to the issue of whether or not the photocopies
are indeed electronic documents as contemplated in Republic Act No.
8792 or the Implementing Rules and Regulations of the Electronic
Commerce Act, as well as the Rules on Electronic Evidence, we shall
enumerate the following documents offered as evidence by the
petitioner, to wit:
“1. Exhibit “A” is a photocopy of a letter manually signed by a certain
Jose C. Troyo, with “RECEIVED” stamped thereon, together with a
handwritten date;
2. Exhibit “C” is a photocopy of a list of estimated cost of damages of
petitioner’s power barges 207 and 209 prepared by Hopewell Mobile
Power Systems Corporation and manually signed by Messrs. Rex
Malaluan and Virgilio Asprer;
3. Exhibit “D” is a photocopy of a letter manually signed by a certain
Nestor G. Enriquez, Jr., with “RECEIVED” stamped thereon, together
with a handwritten notation of the date it was received;
4. Exhibit “E” is a photocopy of a Standard Marine Protest Form which
was filled up and accomplished by Rex Joel C. Malaluan in his own
handwriting and signed by him. Portions of the Jurat were
handwritten, and manually signed by the Notary Public;
5. Exhibit “H” is a photocopy of a letter manually signed by Mr. Nestor
G. Enriquez, Jr. with “RECEIVED” stamped thereon, together with a
handwritten notation of the date it was received;
6. Exhibit “I” is a photocopy of a computation of the estimated energy
loss allegedly suffered by petitioner which was manually signed by Mr.
Nestor G. Enriquez, Jr.;
7. Exhibit “J” is a photocopy of a letter containing the breakdown of
the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with
“RECEIVED” stamped thereon, together with a handwritten notation
of the date it was received, and other handwritten notations;
8. Exhibit “K” is a photocopy of the Subpoena Duces Tecum Ad
Testificandum written using a manual typewriter, signed manually by
Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it
was received by the party;
22
9. Exhibit “L” is a photocopy of a portion of the electricity supply and
operation and maintenance agreement between petitioner and
Hopewell, containing handwritten notations and every page containing
three unidentified manually placed signatures;
10. Exhibit “M” is a photocopy of the Notice of Termination with
attachments addressed to Rex Joel C. Malaluan, manually signed by
Jaime S. Patinio, with a handwritten notation of the date it was
received. The sub-markings also contain manual signatures and/or
handwritten notations;
11. Exhibit “N” is a photocopy of a letter of termination with
attachments addressed to VIrgilio Asprer and manually signed by
Jaime S. Patino. The sub-markings contain manual signatures and/or
handwritten notations;
12. Exhibit “O” is the same photocopied document marked as Annex
“C”;
13. Exhibit “P” is a photocopy of an incident report manually signed
by Messrs. Malaluan and Bautista and by the Notary Public, with other
handwritten notations;
14. Exhibit “Q” is a photocopy of a letter manually signed by Virgilio
Asprer and by a Notary Public, together with other handwritten
notations.”
On the other hand, an “electronic document” refers to information or
the representation of information, data, figures, symbols or other
models of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which
a fact may be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced electronically. It
includes digitally signed documents and any printout, readable by
sight or other means which accurately reflects the electronic data
message or electronic document.
The rules use the word “information” to define an electronic document
received, recorded, transmitted, stored, processed, retrieved or
produced electronically. This would suggest that an electronic
document is relevant only in terms of the information contained
therein, similar to any other document which is presented in evidence
as proof of its contents. However, what differentiates an electronic
document from a paper-based document is the manner by which the
information is processed; clearly, the information contained in an
electronic document is received, recorded, transmitted, stored,
processed, retrieved or produced electronically.
A perusal of the information contained in the photocopies submitted
by petitioner will reveal that not all of the contents therein, such as
the signatures of the persons who purportedly signed the documents,
may be recorded or produced electronically. By no stretch of the
imagination can a person’s signature affixed manually be considered
as information electronically received, recorded, transmitted, stored,
processed, retrieved or produced. Hence, the argument of petitioner
that since these paper printouts were produced through an electronic
process, then these photocopies are electronic documents as defined
in the Rules on Electronic Evidence is obviously an erroneous, if not
preposterous, interpretation of the law. Having thus declared that the
offered photocopies are not tantamount to electronic documents, it is
consequential that the same may not be considered as the functional
equivalent of their original as decreed in the law.
Furthermore, no error can be ascribed to the court a quo in denying
admission and excluding from the records petitioner’s Exhibits “A,”
“C,” “D,” “E,” “H” and its sub-markings, “I,” “J” and its sub-markings,
“K,” “L,” “M” and its sub-markings, “N” and its sub-markings, “O,” “P”
and its sub-markings, “Q” and its sub-markings, and “R.” The trial
court was correct in rejecting these photocopies as they violate the
best evidence rule and are therefore of no probative value being
incompetent pieces of evidence. Before the onset of liberal rules of
discovery, and modern technique of electronic copying, the best
evidence rule was designed to guard against incomplete or fraudulent
23
proof and the introduction of altered copies and the withholding of the
originals. But the modern justification for the rule has expanded from
the prevention of fraud to a recognition that writings occupy a central
position in the law. The importance of the precise terms of writings in
the world of legal relations, the fallibility of the human memory as
reliable evidence of the terms, and the hazards of inaccurate or
incomplete duplicate are the concerns addressed by the best evidence
rule.
Moreover, as mandated under Section 2, Rule 130 of the Rules of
Court:
“SECTION 2. Original writing must be produced; exceptions.—There
can be no evidence of a writing the contents of which is the subject
of inquiry, other than the original writing itself, except in the following
cases:
(a) When the original has been lost, destroyed, or cannot be produced
in court;
(b) When the original is in the possession of the party against whom
the evidence is offered, and the latter fails to produce it after
reasonable notice;
(c) When the original is a record or other document in the custody of
a public officer;
(d) When the original has been recorded in an existing record a
certified copy of which is made evidence by law;
(e) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole.”
When the original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may
prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order
stated. The offeror of secondary evidence is burdened to prove the
predicates thereof: (a) the loss or destruction of the original without
bad faith on the part of the proponent/offeror which can be shown by
circumstantial evidence of routine practices of destruction of
documents; (b) the proponent must prove by a fair preponderance of
evidence as to raise a reasonable inference of the loss or destruction
of the original copy; and (c) it must be shown that a diligent and bona
fide but unsuccessful search has been made for the document in the
proper place or places. However, in the case at bar, though petitioner
insisted in offering the photocopies as documentary evidence, it failed
to establish that such offer was made in accordance with the
exceptions as enumerated under the abovequoted rule. Accordingly,
we find no error in the Order of the court a quo denying admissibility
of the photocopies offered by petitioner as documentary evidence.
Finally, it perplexes this Court why petitioner continued to obdurately
disregard the opportunities given by the trial court for it to present the
originals of the photocopies it presented yet comes before us now
praying that it be allowed to present the originals of the exhibits that
were denied admission or in case the same are lost, to lay the
predicate for the admission of secondary evidence. Had petitioner
presented the originals of the documents to the court instead of the
photocopies it obstinately offered as evidence, or at the very least laid
the predicate for the admission of said photocopies, this controversy
would not have unnecessarily been brought before the appellate court
and finally to this Court for adjudication. Had it not been for
petitioner’s intransigence, the merits of petitioner’s complaint for
damages would have been decided upon by the trial court long ago.
As aptly articulated by the Court of Appeals, petitioner has only itself
to blame for the respondent judge’s denial of admission of its
aforementioned documentary evidence and consequently, the denial
of its prayer to be given another opportunity to present the originals
of the documents that were denied admission nor to lay the predicate
for the admission of secondary evidence in case the same has been
lost.
24
WHEREFORE, premises considered, the instant petition is hereby
DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No.
00848, dated 9 November 2005 is hereby AFFIRMED. Costs against
petitioner.

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez and Callejo, Sr.,

JJ., concur.

Nachura, J., No part.

Petition denied, judgment affirmed.

Note.—Offeror not obliged to prove the loss or destruction of the

original document beyond all possibility as it is enough to prove a
reasonable probability of such loss. (Republic vs. Masongsong, 470
SCRA 574 [2005])

——o0o——

25
 MCC INDUSTRIAL SALES CORPORATION, petitioner, vs.
SSANGYONG CORPORATION, respondent
G.R. No. 170633. October 17, 2007
Actions; Pleadings and Practice; Attorneys; Judgments; While receipt
of a copy of the decision by one of several counsels on record is notice
to all, and the period to appeal commences on such date even if the
other counsel has not yet received a copy of the decision, the rule may
be relaxed where it appears that there is an apparent agreement
between the counsels that it would be the collaborating, not the
principal, who would file the appeal brief and the subsequent
pleadings in the Court of Appeals.—It cannot be gainsaid that in
Albano v. Court of Appeals, 362 SCRA 667 (2001), we held that receipt
of a copy of the decision by one of several counsels on record is notice
to all, and the period to appeal commences on such date even if the
other counsel has not yet received a copy of the decision. In this case,
when Atty. Samson received a copy of the CA decision on September
14, 2005, MCC had only fifteen (15) days within which to file a motion
for reconsideration conformably with Section 1, Rule 52 of the Rules
of Court, or to file a petition for review on certiorari in accordance with
Section 2, Rule 45. The period should not be reckoned from
September 29, 2005 (when Castillo Zamora & Poblador received their
copy of the decision) because notice to Atty. Samson is deemed notice
to collaborating counsel. We note, however, from the records of the
CA, that it was Castillo Zamora & Poblador, not Atty. Samson, which
filed both MCC’s and Chan’s Brief and Reply Brief. Apparently, the
arrangement between the two counsels was for the collaborating, not
the principal, counsel to file the appeal brief and subsequent pleadings
in the CA. This explains why it was Castillo Zamora & Poblador which
filed the motion for the reconsideration of the CA decision, and they
did so on October 5, 2005, well within the 15-day period from
September 29, 2005, when they received their copy of the CA decision.
This could also be the reason why the CA did not find it necessary to
resolve the question of the timeliness of petitioner’s motion for
reconsideration, even as the CA denied the same.
Same; Same; Same; Procedural Rules and Technicalities; It should be
remembered that the Rules were promulgated to set guidelines in the
orderly administration of justice, not to shackle the hand that
dispenses it. — It should be remembered that the Rules were
promulgated to set guidelines in the orderly administration of justice,
not to shackle the hand that dispenses it. Otherwise, the courts would
be consigned to being mere slaves to technical rules, deprived of their
judicial discretion. Technicalities must take a backseat to substantive
rights. After all, it is circumspect leniency in this respect that will give
the parties the fullest opportunity to ventilate the merits of their
respective causes, rather than have them lose life, liberty, honor or
property on sheer technicalities.
Same; Same; Motions for Reconsideration; Mere restatement of
arguments in a motion for reconsideration does not per se result in a
pro forma motion; The pro forma rule will not apply if the arguments
were not sufficiently passed upon and answered in the decision sought
to be reconsidered. — Suffice it to say that the mere restatement of
arguments in a motion for reconsideration does not per se result in a
pro forma motion. In Security Bank and Trust Company, Inc. v.
Cuenca, 341 SCRA 781 (2000), we held that a motion for
reconsideration may not be necessarily pro forma even if it reiterates
the arguments earlier passed upon and rejected by the appellate
court. A movant may raise the same arguments precisely to convince
the court that its ruling was erroneous. Furthermore, the pro forma
rule will not apply if the arguments were not sufficiently passed upon
and answered in the decision sought to be reconsidered.
Same; Same; The Supreme Court has ample authority to go beyond
the pleadings when, in the interest of justice or for the promotion of
public policy, there is a need to make its own findings in order to
support its conclusions. — The second issue poses a novel question
that the Court welcomes. It provides the occasion for this Court to
pronounce a definitive interpretation of the equally innovative
provisions of the Electronic Commerce Act of 2000 (R.A. No. 8792)
vis-àvis the Rules on Electronic Evidence. Although the parties did not
26
raise the question whether the original facsimile transmissions are
“electronic data messages” or “electronic documents” within the
context of the Electronic Commerce Act (the petitioner merely assails
as inadmissible evidence the photocopies of the said facsimile
transmissions), we deem it appropriate to determine first whether the
said fax transmissions are indeed within the coverage of R.A. No. 8792
before ruling on whether the photocopies thereof are covered by the
law. In any case, this Court has ample authority to go beyond the
pleadings when, in the interest of justice or for the promotion of public
policy, there is a need to make its own findings in order to support its
conclusions.
Electronic Commerce Act of 2000 (R.A. No. 8792); Evidence; Rules on
Electronic Evidence; Best Evidence Rule; Words and Phrases; To be
admissible in evidence as an electronic data message or to be
considered as the functional equivalent of an original document under
the Best Evidence Rule, the writing must foremost be an “electronic
data message” or an “electronic document.”—The ruling of the
Appellate Court is incorrect. R.A. No. 8792, otherwise known as the
Electronic Commerce Act of 2000, considers an electronic data
message or an electronic document as the functional equivalent of a
written document for evidentiary purposes. The Rules on Electronic
Evidence regards an electronic document as admissible in evidence if
it complies with the rules on admissibility prescribed by the Rules of
Court and related laws, and is authenticated in the manner prescribed
by the said Rules. An electronic document is also the equivalent of an
original document under the Best Evidence Rule, if it is a printout or
output readable by sight or other means, shown to reflect the data
accurately. Thus, to be admissible in evidence as an electronic data
message or to be considered as the functional equivalent of an original
document under the Best Evidence Rule, the writing must foremost be
an “electronic data message” or an “electronic document.”
Same; Same; Same; Statutory Construction; Words and Phrases;
While “data message” has reference to information electronically sent,
stored or transmitted, it does not necessarily mean that it will give rise
to a right or extinguish an obligation, unlike an “electronic document,”
nevertheless evident from the law is the legislative intent to give the
two terms the same construction.—The clause on the
interchangeability of the terms “electronic data message” and
“electronic document” was the result of the Senate of the Philippines’
adoption, in Senate Bill 1902, of the phrase “electronic data message”
and the House of Representative’s employment, in House Bill 9971, of
the term “electronic document.” In order to expedite the reconciliation
of the two versions, the technical working group of the Bicameral
Conference Committee adopted both terms and intended them to be
the equivalent of each one. Be that as it may, there is a slight
difference between the two terms. While “data message” has
reference to information electronically sent, stored or transmitted, it
does not necessarily mean that it will give rise to a right or extinguish
an obligation, unlike an electronic document. Evident from the law,
however, is the legislative intent to give the two terms the same
construction.
Same; Same; Same; Same; Same; The “international origin”
mentioned in Section 37 of the Electronic Commerce Act can only refer
to the UNCITRAL Model Law, and the UNCITRAL’s definition of “data
message.”—As further guide for the Court in its task of statutory
construction, Section 37 of the Electronic Commerce Act of 2000
provides that Unless otherwise expressly provided for, the
interpretation of this Act shall give due regard to its international origin
and the need to promote uniformity in its application and the
observance of good faith in international trade relations. The generally
accepted principles of international law and convention on electronic
commerce shall likewise be considered. Obviously, the “international
origin” mentioned in this section can only refer to the UNCITRAL Model
Law, and the UNCITRAL’s definition of “data message”: “Data
message” means information generated, sent, received or stored by
electronic, optical or similar means including, but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy, is substantially the same as the IRR’s characterization of an
“electronic data message.”
27
Same; Same; Same; Same; Same; A construction should be rejected
that gives to the language used in a statute a meaning that does not
accomplish the purpose for which the statute was enacted, and that
tends to defeat the ends which are sought to be attained by the
enactment.—Congress deleted the phrase, “but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy,” and replaced the term “data message” (as found in the
UNCITRAL Model Law) with “electronic data message.” This legislative
divergence from what is assumed as the term’s “international origin”
has bred uncertainty and now impels the Court to make an inquiry into
the true intent of the framers of the law. Indeed, in the construction
or interpretation of a legislative measure, the primary rule is to search
for and determine the intent and spirit of the law. A construction
should be rejected that gives to the language used in a statute a
meaning that does not accomplish the purpose for which the statute
was enacted, and that tends to defeat the ends which are sought to
be attained by the enactment.
Same; Same; Same; Same; Same; Facsimile Transmissions; There is
no question that when Congress formulated the term “electronic data
message,” it intended the same meaning as the term “electronic
record” in the Canada law, which construction of the term “electronic
data message,” excludes telexes or faxes, except computer-generated
faxes, in harmony with the Electronic Commerce Law’s focus on
“paperless” communications and the “functional equivalent approach”
that it espouses; Facsimile transmissions are not “paperless” but verily
are paper-based.—When the Senate consequently voted to adopt the
term “electronic data message,” it was consonant with the explanation
of Senator Miriam Defensor-Santiago that it would not apply “to
telexes or faxes, except computer-generated faxes, unlike the United
Nations model law on electronic commerce.” In explaining the term
“electronic record” patterned after the ECommerce Law of Canada,
Senator Defensor-Santiago had in mind the term “electronic data
message.” This term then, while maintaining part of the UNCITRAL
Model Law’s terminology of “data message,” has assumed a different
context, this time, consonant with the term “electronic record” in the
law of Canada. It accounts for the addition of the word “electronic”
and the deletion of the phrase “but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy.”
Noteworthy is that the Uniform Law Conference of Canada, explains
the term “electronic record,” as drafted in the Uniform Electronic
Evidence Act, in a manner strikingly similar to Sen. Santiago’s
explanation during the Senate deliberations: x x x There is no question
then that when Congress formulated the term “electronic data
message,” it intended the same meaning as the term “electronic
record” in the Canada law. This construction of the term “electronic
data message,” which excludes telexes or faxes, except computer-
generated faxes, is in harmony with the Electronic Commerce Law’s
focus on “paperless” communications and the “functional equivalent
approach” that it espouses. In fact, the deliberations of the Legislature
are replete with discussions on paperless and digital transactions.
Facsimile transmissions are not, in this sense, “paperless,” but verily
are paper-based.
Same; Same; Same; Same; Same; Same; A facsimile machine, which
was first patented in 1843 by Alexander Bain, is a device that can send
or receive pictures and text over a telephone line, and works by
digitizing an image; A fax machine is essentially an image scanner, a
modem and a computer printer combined into a highly specialized
package. — A facsimile machine, which was first patented in 1843 by
Alexander Bain, is a device that can send or receive pictures and text
over a telephone line. It works by digitizing an image—dividing it into
a grid of dots. Each dot is either on or off, depending on whether it is
black or white. Electronically, each dot is represented by a bit that has
a value of either 0 (off) or 1 (on). In this way, the fax machine
translates a picture into a series of zeros and ones (called a bit map)
that can be transmitted like normal computer data. On the receiving
side, a fax machine reads the incoming data, translates the zeros and
ones back into dots, and reprints the picture. A fax machine is
essentially an image scanner, a modem and a computer printer
combined into a highly specialized package. The scanner converts the
content of a physical document into a digital image, the modem sends
28
the image data over a phone line, and the printer at the other end
makes a duplicate of the original document.
Same; Same; Same; Same; Same; Same; In a virtual or paperless
environment, technically, there is no original copy to speak of, as all
direct printouts of the virtual reality are the same, in all respects, and
are considered as originals; Ineluctably, the law’s definition of
“electronic data message,” which, as aforesaid, is interchangeable
with “electronic document,” could not have included facsimile
transmissions, which have an original paper-based copy as sent and a
paper-based facsimile copy as received; While Congress anticipated
future developments in communications and computer technology
when it drafted the law, it excluded the early forms of technology, like
telegraph, telex and telecopy (except computer-generated faxes,
which is a newer development as compared to the ordinary fax
machine to fax machine transmission), when it defined the term
“electronic data message.”—In an ordinary facsimile transmission,
there exists an original paper-based information or data that is
scanned, sent through a phone line, and re-printed at the receiving
end. Be it noted that in enacting the Electronic Commerce Act of 2000,
Congress intended virtual or paperless writings to be the functional
equivalent and to have the same legal function as paper-based
documents. Further, in a virtual or paperless environment, technically,
there is no original copy to speak of, as all direct printouts of the virtual
reality are the same, in all respects, and are considered as originals.
Ineluctably, the law’s definition of “electronic data message,” which,
as aforesaid, is interchangeable with “electronic document,” could not
have included facsimile transmissions, which have an original paper-
based copy as sent and a paper-based facsimile copy as received.
These two copies are distinct from each other, and have different legal
effects. While Congress anticipated future developments in
communications and computer technology when it drafted the law, it
excluded the early forms of technology, like telegraph, telex and
telecopy (except computer-generated faxes, which is a newer
development as compared to the ordinary fax machine to fax machine
transmission), when it defined the term “electronic data message.”
Same; Same; Same; Same; Same; Same; Administrative Law; The
power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is found in
the legislative enactment itself; The IRR went beyond the parameters
of the law when it adopted verbatim the UNCITRAL Model Law’s
definition of “data message,” without considering the intention of
Congress when the latter deleted the phrase “but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.”—Clearly then, the IRR went beyond the parameters of the
law when it adopted verbatim the UNCITRAL Model Law’s definition of
“data message,” without considering the intention of Congress when
the latter deleted the phrase “but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy.” The
inclusion of this phrase in the IRR offends a basic tenet in the exercise
of the rule-making power of administrative agencies. After all, the
power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is found in
the legislative enactment itself. The implementing rules and
regulations of a law cannot extend the law or expand its coverage, as
the power to amend or repeal a statute is vested in the Legislature.
Thus, if a discrepancy occurs between the basic law and an
implementing rule or regulation, it is the former that prevails, because
the law cannot be broadened by a mere administrative issuance—an
administrative agency certainly cannot amend an act of Congress. Had
the Legislature really wanted ordinary fax transmissions to be covered
by the mantle of the Electronic Commerce Act of 2000, it could have
easily lifted without a bit of tatter the entire wordings of the UNCITRAL
Model Law.
Same; Same; Same; Best Evidence Rule; Facsimile Transmissions; A
facsimile transmission cannot be considered as electronic evidence—
it is not the functional equivalent of an original under the Best
Evidence Rule and is not admissible as electronic evidence. — We,
therefore, conclude that the terms “electronic data message” and
“electronic document,” as defined under the Electronic Commerce Act
of 2000, do not include a facsimile transmission. Accordingly, a
29
facsimile transmission cannot be considered as electronic evidence. It
is not the functional equivalent of an original under the Best Evidence
Rule and is not admissible as electronic evidence.
Same; Same; Same; Same; Same; Since a facsimile transmission is
not an “electronic data message” or an “electronic document,” and
cannot be considered as electronic evidence by the Court, with greater
reason is a photocopy of such a fax transmission not electronic
evidence.—Since a facsimile transmission is not an “electronic data
message” or an “electronic document,” and cannot be considered as
electronic evidence by the Court, with greater reason is a photocopy
of such a fax transmission not electronic evidence. In the present case,
therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-
POSTS0401-2 (Exhibits “E” and “F”), which are mere photocopies of
the original fax transmittals, are not electronic evidence, contrary to
the position of both the trial and the appellate courts.
Actions; Contracts; Breach of Contract; Requisites. — Despite the pro
forma invoices not being electronic evidence, this Court finds that
respondent has proven by preponderance of evidence the existence
of a perfected contract of sale. In an action for damages due to a
breach of a contract, it is essential that the claimant proves (1) the
existence of a perfected contract, (2) the breach thereof by the other
contracting party and (3) the damages which he/she sustained due to
such breach. Actori incumbit onus probandi. The burden of proof rests
on the party who advances a proposition affirmatively. In other words,
a plaintiff in a civil action must establish his case by a preponderance
of evidence, that is, evidence that has greater weight, or is more
convincing than that which is offered in opposition to it.
Civil Law; Same; Sales; Elements; In general, contracts are perfected
by mere consent, which is manifested by the meeting of the offer and
the acceptance upon the thing and the cause which are to constitute
the contract. — In general, contracts are perfected by mere consent,
which is manifested by the meeting of the offer and the acceptance
upon the thing and the cause which are to constitute the contract. The
offer must be certain and the acceptance absolute. They are,
moreover, obligatory in whatever form they may have been entered
into, provided all the essential requisites for their validity are present.
Sale, being a consensual contract, follows the general rule that it is
perfected at the moment there is a meeting of the minds upon the
thing which is the object of the contract and upon the price. From that
moment, the parties may reciprocally demand performance, subject
to the provisions of the law governing the form of contracts. The
essential elements of a contract of sale are (1) consent or meeting of
the minds, that is, to transfer ownership in exchange for the price, (2)
object certain which is the subject matter of the contract, and (3)
cause of the obligation which is established.
Same; Same; Same; Evidence; Best Evidence Rule; Requisites Before
Admission of Secondary Evidence; It has been held that where the
missing document is the foundation of the action, more strictness in
proof is required than where the document is only collaterally
involved.—Because these documents are mere photocopies, they are
simply secondary evidence, admissible only upon compliance with
Rule 130, Section 5, which states, “[w]hen the original document has
been lost or destroyed, or cannot be produced in court, the offeror,
upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by
a copy, or by a recital of its contents in some authentic document, or
by the testimony of witnesses in the order stated.” Furthermore, the
offeror of secondary evidence must prove the predicates thereof,
namely: (a) the loss or destruction of the original without bad faith on
the part of the proponent/offeror which can be shown by
circumstantial evidence of routine practices of destruction of
documents; (b) the proponent must prove by a fair preponderance of
evidence as to raise a reasonable inference of the loss or destruction
of the original copy; and (c) it must be shown that a diligent and bona
fide but unsuccessful search has been made for the document in the
proper place or places. It has been held that where the missing
document is the foundation of the action, more strictness in proof is
required than where the document is only collaterally involved. Given
these norms, we find that respondent failed to prove the existence of
30
the original fax transmissions of Exhibits “E” and “F,” and likewise did
not sufficiently prove the loss or destruction of the originals. Thus,
Exhibits “E” and “F” cannot be admitted in evidence and accorded
probative weight.
Same; Same; Same; Same; Appeals; Evidence not objected to is
deemed admitted and may be validly considered by the court in
arriving at its judgment; Issues not raised on appeal are deemed
abandoned. — Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit “X”),
however, is a mere photocopy of its original. But then again, petitioner
MCC does not assail the admissibility of this document in the instant
petition. Verily, evidence not objected to is deemed admitted and may
be validly considered by the court in arriving at its judgment. Issues
not raised on appeal are deemed abandoned.
Same; Same; Same; Same; Appropriate conduct by the parties may
be sufficient to establish an agreement, and while there may be
instances where the exchange of correspondence does not disclose
the exact point at which the deal was closed, the actions of the parties
may indicate that a binding obligation has been undertaken.—The
logical chain of events, as gleaned from the evidence of both parties,
started with the petitioner and the respondent agreeing on the sale
and purchase of 220MT of stainless steel at US$1,860.00 per MT. This
initial contract was perfected. Later, as petitioner asked for several
extensions to pay, adjustments in the delivery dates, and discounts in
the price as originally agreed, the parties slightly varied the terms of
their contract, without necessarily novating it, to the effect that the
original order was reduced to 200MT, split into two deliveries, and the
price discounted to US$1,700 per MT. Petitioner, however, paid only
half of its obligation and failed to open an L/C for the other 100MT.
Notably, the conduct of both parties sufficiently established the
existence of a contract of sale, even if the writings of the parties,
because of their contested admissibility, were not as explicit in
establishing a contract. Appropriate conduct by the parties may be
sufficient to establish an agreement, and while there may be instances
where the exchange of correspondence does not disclose the exact
point at which the deal was closed, the actions of the parties may
indicate that a binding obligation has been undertaken.
Same; Same; Same; It is a well-entrenched rule that the failure of a
buyer to furnish an agreed letter of credit is a breach of the contract
between buyer and seller; Damages for failure to open a commercial
credit may, in appropriate cases, include the loss of profit which the
seller would reasonably have made had the transaction been carried
out.—With our finding that there is a valid contract, it is crystal-clear
that when petitioner did not open the L/C for the first half of the
transaction (100MT), despite numerous demands from respondent
Ssangyong, petitioner breached its contractual obligation. It is a well-
entrenched rule that the failure of a buyer to furnish an agreed letter
of credit is a breach of the contract between buyer and seller. Indeed,
where the buyer fails to open a letter of credit as stipulated, the seller
or exporter is entitled to claim damages for such breach. Damages for
failure to open a commercial credit may, in appropriate cases, include
the loss of profit which the seller would reasonably have made had
the transaction been carried out.
Same; Same; Same; Evidence; Breach of Contract; Damages; It is
axiomatic that actual or compensatory damages cannot be presumed,
but must be proven with a reasonable degree of certainty. — This
Court, however, finds that the award of actual damages is not in
accord with the evidence on record. It is axiomatic that actual or
compensatory damages cannot be presumed, but must be proven with
a reasonable degree of certainty. In Villafuerte v. Court of Appeals,
459 SCRA 58 (2005), we explained that: Actual or compensatory
damages are those awarded in order to compensate a party for an
injury or loss he suffered. They arise out of a sense of natural justice
and are aimed at repairing the wrong done. Except as provided by law
or by stipulation, a party is entitled to an adequate compensation only
for such pecuniary loss as he has duly proven. It is hornbook doctrine
that to be able to recover actual damages, the claimant bears the onus
of presenting before the court actual proof of the damages alleged to
have been suffered.
31
Same; Same; Same; Same; Same; Same; In the absence of
corroborative evidence, self-serving statements of account are not
sufficient basis to award actual damages—the court cannot simply rely
on speculation, conjecture or guesswork as to the fact and amount of
damages, but must depend on competent proof that the claimant had
suffered, and on evidence of, the actual amount thereof.—The
statement of account and the details of the losses sustained by
respondent due to the said breach are, at best, self-serving. It was
respondent Ssangyong itself which prepared the said documents. The
items therein are not even substantiated by official receipts. In the
absence of corroborative evidence, the said statement of account is
not sufficient basis to award actual damages. The court cannot simply
rely on speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on competent proof that the
claimant had suffered, and on evidence of, the actual amount thereof.
Same; Same; Same; Same; Same; Same; Nominal damages are
recoverable where a legal right is technically violated and must be
vindicated against an invasion that has produced no actual present
loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be
shown. — The Court finds that petitioner knowingly breached its
contractual obligation and obstinately refused to pay despite repeated
demands from respondent. Petitioner even asked for several
extensions of time for it to make good its obligation. But in spite of
respondent’s continuous accommodation, petitioner completely
reneged on its contractual duty. For such inattention and insensitivity,
MCC must be held liable for nominal damages. “Nominal damages are
‘recoverable where a legal right is technically violated and must be
vindicated against an invasion that has produced no actual present
loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be
shown.’” Accordingly, the Court awards nominal damages of
P200,000.00 to respondent Ssangyong.
Attorney’s Fees; In the instant case, the Court finds the award of
attorney’s fees proper considering that the defendant’s unjustified
refusal to pay has compelled the plaintiff to litigate and to incur
expenses to protect its rights. — As to the award of attorney’s fees, it
is well-settled that no premium should be placed on the right to litigate
and not every winning party is entitled to an automatic grant of
attorney’s fees. The party must show that he falls under one of the
instances enumerated in Article 2208 of the Civil Code. In the instant
case, however, the Court finds the award of attorney’s fees proper,
considering that petitioner MCC’s unjustified refusal to pay has
compelled respondent Ssangyong to litigate and to incur expenses to
protect its rights.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Zamora, Poblador, Vasquez & Bretaña for petitioner.
Donato, Zarate & Rodriguez for respondent.
NACHURA, J.:
Before the Court is a petition for review on certiorari of the Decision
of the Court of Appeals in CA-G.R. CV No. 82983 and its Resolution
denying the motion for reconsideration thereof.
Petitioner MCC Industrial Sales (MCC), a domestic corporation with
office at Binondo, Manila, is engaged in the business of importing and
wholesaling stainless steel products. One of its suppliers is the
Ssangyong Corporation (Ssangyong), an international trading
company with head office in Seoul, South Korea and regional
headquarters in Makati City, Philippines. The two corporations
conducted business through telephone calls and facsimile or telecopy
transmissions. Ssangyong would send the pro forma invoices
containing the details of the steel product order to MCC; if the latter
conforms thereto, its representative affixes his signature on the faxed
32
copy and sends it back to Ssangyong, again by fax. On April 13, 2000, stainless steel, and that the goods were to be shipped in two tranches,
Ssangyong Manila Office sent, by fax, a letter addressed to Gregory the first 100MT on that day and the second 100MT not later than June
Chan, MCC Manager [also the President of Sanyo Seiki Stainless Steel 27, 2000.
Corporation], to confirm MCC’s and Sanyo Seiki’s order of 220 metric
Ssangyong reiterated its request for the facilitation of the L/C’s
tons (MT) of hot rolled stainless steel under a preferential rate of
opening.
US$1,860.00 per MT. Chan, on behalf of the corporations, assented
and affixed his signature on the conforme portion of the letter. Ssangyong later, through its Manila Office, sent a letter, on June 26,
2000, to the Treasury Group of Sanyo Seiki that it was looking forward
On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice
to receiving the L/C details and a cable copy thereof that day.
No. ST2-POSTSO401 containing the terms and conditions of the
Ssangyong sent a separate letter of the same date to Sanyo Seiki
transaction. MCC sent back by fax to Ssangyong the invoice bearing
requesting for the opening of the L/C covering payment of the first
the conformity signature of Chan. As stated in the pro forma invoice,
100MT not later than June 28, 2000. Similar letters were transmitted
payment for the ordered steel products would be made through an
by Ssangyong Manila Office on June 27, 2000. On June 28, 2000,
irrevocable letter of credit (L/C) at sight in favor of Ssangyong.
Ssangyong sent another facsimile letter to MCC stating that its
Following their usual practice, delivery of the goods was to be made
principal in Korea was already in a difficult situation because of the
after the L/C had been opened.
failure of Sanyo Seiki and MCC to open the L/C’s.
In the meantime, because of its confirmed transaction with MCC,
The following day, June 29, 2000, Ssangyong received, by fax, a letter
Ssangyong placed the order with its steel manufacturer, Pohang Iron
signed by Chan, requesting an extension of time to open the L/C
and Steel Corporation (POSCO), in South Korea and paid the same in
because MCC’s credit line with the bank had been fully availed of in
full.
connection with another transaction, and MCC was waiting for an
Because MCC could open only a partial letter of credit, the order for additional credit line. On the same date, Ssangyong replied,
220MT of steel was split into two, one for 110MT covered by Pro requesting that it be informed of the date when the L/C would be
Forma Invoice No. ST2-POSTS0401-1 and another for 110MT covered opened, preferably at the earliest possible time, since its Steel Team
by ST2-POSTS0401-2, both dated April 17, 2000. 2 in Korea was having problems and Ssangyong was incurring
warehousing costs. To maintain their good business relationship and
On June 20, 2000, Ssangyong, through its Manila Office, informed
to support MCC in its financial predicament, Ssangyong offered to
Sanyo Seiki and Chan, by way of a fax transmittal, that it was ready
negotiate with its steel manufacturer, POSCO, another US$20/MT
to ship 193.597MT of stainless steel from Korea to the Philippines. It
discount on the price of the stainless steel ordered. This was intimated
requested that the opening of the L/C be facilitated. Chan affixed his
in Ssangyong’s June 30, 2000 letter to MCC. On July 6, 2000, another
signature on the fax transmittal and returned the same, by fax, to
follow-up letter for the opening of the L/C was sent by Ssangyong to
Ssangyong.
MCC.
Two days later, on June 22, 2000, Ssangyong Manila Office informed
However, despite Ssangyong’s letters, MCC failed to open a letter of
Sanyo Seiki, thru Chan, that it was able to secure a US$30/MT price
credit. Consequently, on August 15, 2000, Ssangyong, through
adjustment on the contracted price of US$1,860.00/MT for the 200MT
counsel, wrote Sanyo Seiki that if the L/C’s were not opened,

33
Ssangyong would be compelled to cancel the contract and hold MCC
liable for damages for breach thereof amounting to US$96,132.18,
inclusive of warehouse expenses, related interests and charges.
Later, Pro Forma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-
2 dated August 16, 2000 were issued by Ssangyong and sent via fax
to MCC. The invoices slightly varied the terms of the earlier pro forma
invoices (ST2POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2),
in that the quantity was now officially 100MT per invoice and the price
was reduced to US$1,700.00 per MT. As can be gleaned from the
photocopies of the said August 16, 2000 invoices submitted to the
court, they both bear the conformity signature of MCC Manager Chan.
On August 17, 2000, MCC finally opened an L/C with PCIBank for
US$170,000.00 covering payment for 100MT of stainless steel coil
under Pro Forma Invoice No. ST2-POSTS080-2. The goods covered by
the said invoice were then shipped to and received by MCC.
MCC then faxed to Ssangyong a letter dated August 22, 2000 signed
by Chan, requesting for a price adjustment of the order stated in Pro
Forma Invoice No. ST2-POSTS080-1, considering that the prevailing
price of steel at that time was US$1,500.00/MT, and that MCC lost a
lot of money due to a recent strike.
Ssangyong rejected the request, and, on August 23, 2000, sent a
demand letter to Chan for the opening of the second and last L/C of
US$170,000.00 with a warning that, if the said L/C was not opened by
MCC on August 26, 2000, Ssangyong would be constrained to cancel
the contract and hold MCC liable for US$64,066.99 (representing cost
difference, warehousing expenses, interests and charges as of August
15, 2000) and other damages for breach. Chan failed to reply.
Exasperated, Ssangyong through counsel wrote a letter to MCC, on
September 11, 2000, canceling the sales contract under ST2-
POSTS0401-1/ST2-POSTS0401-2, and demanding payment of
US$97,317.37 representing losses, warehousing expenses, interests
and charges.
Ssangyong then filed, on November 16, 2001, a civil action for
damages due to breach of contract against defendants MCC, Sanyo
Seiki and Gregory Chan before the Regional Trial Court of Makati City.
In its complaint, Ssangyong alleged that defendants breached their
contract when they refused to open the L/C in the amount of
US$170,000.00 for the remaining 100MT of steel under Pro Forma
Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2.
After Ssangyong rested its case, defendants filed a Demurrer to
Evidence alleging that Ssangyong failed to present the original copies
of the pro forma invoices on which the civil action was based. In an
Order dated April 24, 2003, the court denied the demurrer, ruling that
the documentary evidence presented had already been admitted in
the December 16, 2002 Order and their admissibility finds support in
Republic Act (R.A.) No. 8792, otherwise known as the Electronic
Commerce Act of 2000. Considering that both testimonial and
documentary evidence tended to substantiate the material allegations
in the complaint, Ssangyong’s evidence sufficed for purposes of a
prima facie case.
After trial on the merits, the RTC rendered its Decision on March 24,
2004, in favor of Ssangyong. The trial court ruled that when plaintiff
agreed to sell and defendants agreed to buy the 220MT of steel
products for the price of US$1,860 per MT, the contract was perfected.
The subject transaction was evidenced by Pro Forma Invoice Nos.
ST2-POSTS0401-1 and ST2-POSTS0401-2, which were later amended
only in terms of reduction of volume as well as the price per MT,
following Pro Forma Invoice Nos. ST2-POSTS080-1 and
ST2POSTS080-2. The RTC, however, excluded Sanyo Seiki from
liability for lack of competent evidence. The fallo of the decision reads:
“WHEREFORE, premises considered, Judgment is hereby rendered
ordering defendants MCC Industrial Sales Corporation and Gregory
Chan, to pay plaintiff, jointly and severally the following:
34
1) Actual damages of US$93,493.87 representing the outstanding
principal claim plus interest at the rate of 6% per annum from March
30, 2001.
2) Attorney’s fees in the sum of P50,000.00 plus P2,000.00 per
counsel’s appearance in court, the same being deemed just and
equitable considering that by reason of defendants’ breach of their
obligation under the subject contract, plaintiff was constrained to
litigate to enforce its rights and recover for the damages it sustained,
and therefore had to engage the services of a lawyer.
3) Costs of suit.
No award of exemplary damages for lack of sufficient basis.
SO ORDERED.”
On April 22, 2004, MCC and Chan, through their counsel of record,
Atty. Eladio B. Samson, filed their Notice of Appeal. On June 8, 2004,
the law office of Castillo Zamora & Poblador entered its appearance
as their collaborating counsel.
In their Appeal Brief filed on March 9, 2005, MCC and Chan raised
before the CA the following errors of the RTC:
I. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT
APPELLANTS VIOLATED THEIR CONTRACT WITH APPELLEE
A. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING
THAT APPELLANTS AGREED TO PURCHASE 200 METRIC TONS OF
STEEL PRODUCTS FROM APPELLEE, INSTEAD OF ONLY 100 METRIC
TONS.
1. THE HONORABLE COURT A QUO PLAINLY ERRED IN ADMITTING
IN EVIDENCE THE PRO FORMA INVOICES WITH REFERENCE NOS.
ST2POSTS0401-1 AND ST2-POSTS0401-2.
II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING
ACTUAL DAMAGES TO APPELLEE.
III. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING
ATTORNEY’S FEES TO APPELLEE.
IV. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING
APPELLANT GREGORY CHAN JOINTLY AND SEVERALLY LIABLE WITH
APPELLANT MCC.
On August 31, 2005, the CA rendered its Decision affirming the ruling
of the trial court, but absolving Chan of any liability. The appellate
court ruled, among others, that Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2POSTS0401-2 (Exhibits “E,” “E-1” and “F”) were
admissible in evidence, although they were mere facsimile printouts
of MCC’s steel orders. The dispositive portion of the appellate court’s
decision reads:
“WHEREFORE, premises considered, the Court holds:
(1) The award of actual damages, with interest, attorney’s fees and
costs ordered by the lower court is hereby AFFIRMED.
(2) Appellant Gregory Chan is hereby ABSOLVED from any liability.
SO ORDERED.”
A copy of the said Decision was received by MCC’s and Chan’s principal
counsel, Atty. Eladio B. Samson, on September 14, 2005. Their
collaborating counsel, Castillo Zamora & Poblador, likewise, received
a copy of the CA decision on September 19, 2005.
On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC,
filed a motion for reconsideration of the said decision. Ssangyong
opposed the motion contending that the decision of the CA had
become final and executory on account of the failure of MCC to file
the said motion within the reglementary period. The appellate court
resolved, on November 22, 2005, to deny the motion on its merits,
without, however, ruling on the procedural issue raised.
Aggrieved, MCC filed a petition for review on certiorari before this
Court, imputing the following errors to the Court of Appeals:
35
THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOT IN
ACCORDANCE WITH JURISPRUDENCE AND SANCTIONED A
DEPARTURE FROM THE USUAL AND ACCEPTED COURSE OF JUDICIAL
PROCEEDINGS BY REVERSING THE COURT A QUO’S DISMISSAL OF
THE COMPLAINT IN CIVIL CASE NO. 02124 CONSIDERING THAT:
I. THE COURT OF APPEALS ERRED IN SUSTAINING THE
ADMISSIBILITY IN EVIDENCE OF THE PROFORMA INVOICES WITH
REFERENCE NOS. ST2POSTSO401-1 AND ST2-POSTSO401-2,
DESPITE THE FACT THAT THE SAME WERE MERE PHOTOCOPIES OF
FACSIMILE PRINTOUTS.
II. THE COURT OF APPEALS FAILED TO APPRECIATE THE OBVIOUS
FACT THAT, EVEN ASSUMING PETITIONER BREACHED THE
SUPPOSED CONTRACT, THE FACT IS THAT PETITIONER FAILED TO
PROVE THAT IT SUFFERED ANY DAMAGES AND THE AMOUNT
THEREOF.
III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNT OF
US$93,493.87 IS SIMPLY UNCONSCIONABLE AND SHOULD HAVE
BEEN AT LEAST REDUCED, IF NOT DELETED BY THE COURT OF
APPEALS.
In its Comment, Ssangyong sought the dismissal of the petition,
raising the following arguments: that the CA decision dated 15 August
2005 is already final and executory, because MCC’s motion for
reconsideration was filed beyond the reglementary period of 15 days
from receipt of a copy thereof, and that, in any case, it was a pro
forma motion; that MCC breached the contract for the purchase of the
steel products when it failed to open the required letter of credit; that
the printout copies and/or photocopies of facsimile or telecopy
transmissions were properly admitted by the trial court because they
are considered original documents under R.A. No. 8792; and that MCC
is liable for actual damages and attorney’s fees because of its breach,
thus, compelling Ssangyong to litigate.
The principal issues that this Court is called upon to resolve are the
following:
I – Whether the CA decision dated 15 August 2005 is already final and
executory;
II – Whether the print-out and/or photocopies of facsimile
transmissions are electronic evidence and admissible as such;
III – Whether there was a perfected contract of sale between MCC
and Ssangyong, and, if in the affirmative, whether MCC breached the
said contract; and
IV – Whether the award of actual damages and attorney’s fees in favor
of Ssangyong is proper and justified.
-I-
It cannot be gainsaid that in Albano v. Court of Appeals, we held that
receipt of a copy of the decision by one of several counsels on record
is notice to all, and the period to appeal commences on such date
even if the other counsel has not yet received a copy of the decision.
In this case, when Atty. Samson received a copy of the CA decision
on September 14, 2005, MCC had only fifteen (15) days within which
to file a motion for reconsideration conformably with Section 1, Rule
52 of the Rules of Court, or to file a petition for review on certiorari in
accordance with Section 2, Rule 45. The period should not be
reckoned from September 29, 2005 (when Castillo Zamora & Poblador
received their copy of the decision) because notice to Atty. Samson is
deemed notice to collaborating counsel.
We note, however, from the records of the CA, that it was Castillo
Zamora & Poblador, not Atty. Samson, which filed both MCC’s and
Chan’s Brief and Reply Brief. Apparently, the arrangement between
the two counsels was for the collaborating, not the principal, counsel
to file the appeal brief and subsequent pleadings in the CA. This
explains why it was Castillo Zamora & Poblador which filed the motion
for the reconsideration of the CA decision, and they did so on October
36
5, 2005, well within the 15-day period from September 29, 2005, when
they received their copy of the CA decision. This could also be the
reason why the CA did not find it necessary to resolve the question of
the timeliness of petitioner’s motion for reconsideration, even as the
CA denied the same.
Independent of this consideration though, this Court assiduously
reviewed the records and found that strong concerns of substantial
justice warrant the relaxation of this rule.
In Philippine Ports Authority v. Sargasso Construction and
Development Corporation, we ruled that:
“In Orata v. Intermediate Appellate Court, we held that where strong
considerations of substantive justice are manifest in the petition, this
Court may relax the strict application of the rules of procedure in the
exercise of its legal jurisdiction. In addition to the basic merits of the
main case, such a petition usually embodies justifying circumstance
which warrants our heeding to the petitioner’s cry for justice in spite
of the earlier negligence of counsel. As we held in Obut v. Court of
Appeals:
[W]e cannot look with favor on a course of action which would place
the administration of justice in a straight jacket for then the result
would be a poor kind of justice if there would be justice at all. Verily,
judicial orders, such as the one subject of this petition, are issued to
be obeyed, nonetheless a non-compliance is to be dealt with as the
circumstances attending the case may warrant. What should guide
judicial action is the principle that a party-litigant is to be given the
fullest opportunity to establish the merits of his complaint or defense
rather than for him to lose life, liberty, honor or property on
technicalities.
The rules of procedure are used only to secure and not override or
frustrate justice. A six-day delay in the perfection of the appeal, as in
this case, does not warrant the outright dismissal of the appeal. In
Development Bank of the Philippines vs. Court of Appeals, we gave
due course to the petitioner’s appeal despite the late filing of its brief
in the appellate court because such appeal involved public interest.
We stated in the said case that the Court may exempt a particular
case from a strict application of the rules of procedure where the
appellant failed to perfect its appeal within the reglementary period,
resulting in the appellate court’s failure to obtain jurisdiction over the
case. In Republic vs. Imperial, Jr., we also held that there is more
leeway to exempt a case from the strictness of procedural rules when
the appellate court has already obtained jurisdiction over the appealed
case. We emphasize that:
[T]he rules of procedure are mere tools intended to facilitate the
attainment of justice, rather than frustrate it. A strict and rigid
application of the rules must always be eschewed when it would
subvert the rule’s primary objective of enhancing fair trials and
expediting justice. Technicalities should never be used to defeat the
substantive rights of the other party. Every party-litigant must be
afforded the amplest opportunity for the proper and just
determination of his cause, free from the constraints of technicalities.”
Moreover, it should be remembered that the Rules were promulgated
to set guidelines in the orderly administration of justice, not to shackle
the hand that dispenses it. Otherwise, the courts would be consigned
to being mere slaves to technical rules, deprived of their judicial
discretion. Technicalities must take a backseat to substantive rights.
After all, it is circumspect leniency in this respect that will give the
parties the fullest opportunity to ventilate the merits of their respective
causes, rather than have them lose life, liberty, honor or property on
sheer technicalities.
The other technical issue posed by respondent is the alleged pro forma
nature of MCC’s motion for reconsideration, ostensibly because it
merely restated the arguments previously raised and passed upon by
the CA.
In this connection, suffice it to say that the mere restatement of
arguments in a motion for reconsideration does not per se result in a
37
pro forma motion. In Security Bank and Trust Company, Inc. v.
Cuenca, we held that a motion for reconsideration may not be
necessarily pro forma even if it reiterates the arguments earlier passed
upon and rejected by the appellate court. A movant may raise the
same arguments precisely to convince the court that its ruling was
erroneous. Furthermore, the pro forma rule will not apply if the
arguments were not sufficiently passed upon and answered in the
decision sought to be reconsidered.
- II -
The second issue poses a novel question that the Court welcomes. It
provides the occasion for this Court to pronounce a definitive
interpretation of the equally innovative provisions of the Electronic
Commerce Act of 2000 (R.A. No. 8792) vis-àvis the Rules on Electronic
Evidence.
Although the parties did not raise the question whether the original
facsimile transmissions are “electronic data messages” or “electronic
documents” within the context of the Electronic Commerce Act (the
petitioner merely assails as inadmissible evidence the photocopies of
the said facsimile transmissions), we deem it appropriate to determine
first whether the said fax transmissions are indeed within the coverage
of R.A. No. 8792 before ruling on whether the photocopies thereof are
covered by the law. In any case, this Court has ample authority to go
beyond the pleadings when, in the interest of justice or for the
promotion of public policy, there is a need to make its own findings in
order to support its conclusions.
Petitioner contends that the photocopies of the pro forma invoices
presented by respondent Ssangyong to prove the perfection of their
supposed contract of sale are inadmissible in evidence and do not fall
within the ambit of R.A. No. 8792, because the law merely admits as
the best evidence the original fax transmittal. On the other hand,
respondent posits that, from a reading of the law and the Rules on
Electronic Evidence, the original facsimile transmittal of the pro forma
invoice is admissible in evidence since it is an electronic document
and, therefore, the best evidence under the law and the Rules.
Respondent further claims that the photocopies of these fax
transmittals (specifically ST2-POSTS0401-1 and ST2-POSTS0401-2)
are admissible under the Rules on Evidence because the respondent
sufficiently explained the nonproduction of the original fax
transmittals.
In resolving this issue, the appellate court ruled as follows:
Admissibility of Pro Forma Invoices; Breach of Contract by Appellants
Turning first to the appellants’ argument against the admissibility of
the Pro Forma Invoices with Reference Nos. ST2POSTS0401-1 and
ST2-POSTS0401-2 (Exhibits “E,” “E-1” and “F,” pp. 215-218, Records),
appellants argue that the said documents are inadmissible (sic) being
violative of the best evidence rule.
The argument is untenable.
The copies of the said pro-forma invoices submitted by the appellee
are admissible in evidence, although they are mere electronic facsimile
printouts of appellant’s orders. Such facsimile printouts are considered
Electronic Documents under the New Rules on Electronic Evidence,
which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M.
No. 01-7-01-SC).
“(h) ‘Electronic document’ refers to information or the representation
of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally
signed documents and any printout or output, readable by sight or
other means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term ‘electronic
document’ may be used interchangeably with ‘electronic data
message.’
38
An electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule, as long as it is a
printout or output readable by sight or other means, showing to reflect
the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)
The ruling of the Appellate Court is incorrect. R.A. No. 8792, otherwise
known as the Electronic Commerce Act of 2000, considers an
electronic data message or an electronic document as the functional
equivalent of a written document for evidentiary purposes. The Rules
on Electronic Evidence regards an electronic document as admissible
in evidence if it complies with the rules on admissibility prescribed by
the Rules of Court and related laws, and is authenticated in the
manner prescribed by the said Rules. An electronic document is also
the equivalent of an original document under the Best Evidence Rule,
if it is a printout or output readable by sight or other means, shown
to reflect the data accurately.
Thus, to be admissible in evidence as an electronic data message or
to be considered as the functional equivalent of an original document
under the Best Evidence Rule, the writing must foremost be an
“electronic data message” or an “electronic document.”
The Electronic Commerce Act of 2000 defines electronic data message
and electronic document as follows:
“Sec. 5. Definition of Terms. — For the purposes of this Act, the
following terms are defined, as follows:
xxx
c. “Electronic Data Message” refers to information generated, sent,
received or stored by electronic, optical or similar means.
xxx
f. “Electronic Document” refers to information or the representation of
information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically.”
The Implementing Rules and Regulations (IRR) of R.A. No. 8792,
which was signed on July 13, 2000 by the then Secretaries of the
Department of Trade and Industry, the Department of Budget and
Management, and then Governor of the Bangko Sentral ng Pilipinas,
defines the terms as:
“Sec. 6. Definition of Terms. — For the purposes of this Act and these
Rules, the following terms are defined, as follows:
xxx
(e) “Electronic Data Message” refers to information generated, sent,
received or stored by electronic, optical or similar means, but not
limited to, electronic data interchange (EDI), electronic mail, telegram,
telex or telecopy. Throughout these Rules, the term “electronic data
message” shall be equivalent to and be used interchangeably with
“electronic document.”
xxxx
(h) “Electronic Document” refers to information or the representation
of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. Throughout these
Rules, the term “electronic document” shall be equivalent to and be
used interchangeably with “electronic data message.”
The phrase “but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy” in the IRR’s definition of
“electronic data message” is copied from the Model Law on Electronic
Commerce adopted by the United Nations Commission on
International Trade Law (UNCITRAL), from which majority of the
provisions of R.A. No. 8792 were taken. While Congress deleted this
39
phrase in the Electronic Commerce Act of 2000, the drafters of the
IRR reinstated it. The deletion by Congress of the said phrase is
significant and pivotal, as discussed hereunder.
The clause on the interchangeability of the terms “electronic data
message” and “electronic document” was the result of the Senate of
the Philippines’ adoption, in Senate Bill 1902, of the phrase “electronic
data message” and the House of Representative’s employment, in
House Bill 9971, of the term “electronic document.” In order to
expedite the reconciliation of the two versions, the technical working
group of the Bicameral Conference Committee adopted both terms
and intended them to be the equivalent of each one. Be that as it may,
there is a slight difference between the two terms. While “data
message” has reference to information electronically sent, stored or
transmitted, it does not necessarily mean that it will give rise to a right
or extinguish an obligation, unlike an electronic document. Evident
from the law, however, is the legislative intent to give the two terms
the same construction.
The Rules on Electronic Evidence promulgated by this Court defines
the said terms in the following manner:
“SECTION 1. Definition of Terms.—For purposes of these Rules, the
following terms are defined, as follows:
xxxx
(g) “Electronic data message” refers to information generated, sent,
received or stored by electronic, optical or similar means.
(h) “Electronic document” refers to information or the representation
of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally
signed documents and print-out or output, readable by sight or other
means, which accurately reflects the electronic data message or
electronic document. For purposes of these Rules, the term “electronic
document” may be used interchangeably with “electronic data
message.”
Given these definitions, we go back to the original question: Is an
original printout of a facsimile transmission an electronic data message
or electronic document?
The definitions under the Electronic Commerce Act of 2000, its IRR
and the Rules on Electronic Evidence, at first glance, convey the
impression that facsimile transmissions are electronic data messages
or electronic documents because they are sent by electronic means.
The expanded definition of an “electronic data message” under the
IRR, consistent with the UNCITRAL Model Law, further supports this
theory considering that the enumeration “x x x [is] not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.” And to telecopy is to send a document from one place to
another via a fax machine.
As further guide for the Court in its task of statutory construction,
Section 37 of the Electronic Commerce Act of 2000 provides that
“Unless otherwise expressly provided for, the interpretation of this Act
shall give due regard to its international origin and the need to
promote uniformity in its application and the observance of good faith
in international trade relations. The generally accepted principles of
international law and convention on electronic commerce shall likewise
be considered.”
Obviously, the “international origin” mentioned in this section can only
refer to the UNCITRAL Model Law, and the UNCITRAL’s definition of
“data message”:
“Data message” means information generated, sent, received or
stored by electronic, optical or similar means including, but not limited
to, electronic data interchange (EDI), electronic mail, telegram, telex
or telecopy.”
40
is substantially the same as the IRR’s characterization of an “electronic
data message.”
However, Congress deleted the phrase, “but not limited to, electronic
data interchange (EDI), electronic mail, telegram, telex or telecopy,”
and replaced the term “data message” (as found in the UNCITRAL
Model Law) with “electronic data message.” This legislative divergence
from what is assumed as the term’s “international origin” has bred
uncertainty and now impels the Court to make an inquiry into the true
intent of the framers of the law. Indeed, in the construction or
interpretation of a legislative measure, the primary rule is to search
for and determine the intent and spirit of the law. A construction
should be rejected that gives to the language used in a statute a
meaning that does not accomplish the purpose for which the statute
was enacted, and that tends to defeat the ends which are sought to
be attained by the enactment.
Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal
author of Senate Bill 1902 (the predecessor of R.A. No. 8792),
sponsored the bill on second reading, he proposed to adopt the term
“data message” as formulated and defined in the UNCITRAL Model
Law. During the period of amendments, however, the term evolved
into “electronic data message,” and the phrase “but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy” in the UNCITRAL Model Law was deleted. Furthermore, the
term “electronic data message,” though maintaining its description
under the UNCITRAL Model Law, except for the aforesaid deleted
phrase, conveyed a different meaning, as revealed in the following
proceedings:
“x x x x
Senator Santiago. Yes, Mr. President. I will furnish a copy together
with the explanation of this proposed amendment.
And then finally, before I leave the Floor, may I please be allowed to
go back to Section 5; the Definition of Terms. In light of the
acceptance by the good Senator of my proposed amendments, it will
then become necessary to add certain terms in our list of terms to be
defined. I would like to add a definition on what is “data,” what is
“electronic record” and what is an “electronic record system.”
If the gentleman will give me permission, I will proceed with the
proposed amendment on Definition of Terms, Section 5.
Senator Magsaysay. Please go ahead, Senator Santiago.
Senator Santiago. We are in Part 1, short title on the Declaration of
Policy, Section 5, Definition of Terms.
At the appropriate places in the listing of these terms that have to be
defined since these are arranged alphabetically, Mr. President, I would
like to insert the term DATA and its definition. So, the amendment will
read: “DATA” MEANS REPRESENTATION, IN ANY FORM, OF
INFORMATION OR CONCEPTS.
The explanation is this: This definition of “data” or “data” as it is now
fashionably pronounced in America—the definition of “data” ensures
that our bill applies to any form of information in an electronic record,
whether these are figures, facts or ideas.
So again, the proposed amendment is this: “DATA” MEANS
REPRESENTATIONS, IN ANY FORM, OF INFORMATION OR
CONCEPTS.
Senator Magsaysay. May I know how will this affect the definition of
“Data Message” which encompasses electronic records, electronic
writings and electronic documents?
Senator Santiago. These are completely congruent with each other.
These are compatible. When we define “data,” we are simply
reinforcing the definition of what is a data message.
Senator Magsaysay. It is accepted, Mr. President.
41
Senator Santiago. Thank you. The next term is “ELECTRONIC
RECORD.” The proposed amendment is as follows:
“ELECTRONIC RECORD” MEANS DATA THAT IS RECORDED OR
STORED ON ANY MEDIUM IN OR BY A COMPUTER SYSTEM OR OTHER
SIMILAR DEVICE, THAT CAN BE READ OR PERCEIVED BY A PERSON
OR A COMPUTER SYSTEM OR OTHER SIMILAR DEVICE. IT INCLUDES
A DISPLAY, PRINTOUT OR OTHER OUTPUT OF THAT DATA.
The explanation for this term and its definition is as follows: The term
“ELECTRONIC RECORD” fixes the scope of our bill. The record is the
data. The record may be on any medium. It is electronic because it is
recorded or stored in or by a computer system or a similar device.
The amendment is intended to apply, for example, to data on
magnetic strips on cards or in Smart cards. As drafted, it would not
apply to telexes or faxes, except computer-generated faxes, unlike the
United Nations model law on electronic commerce. It would also not
apply to regular digital telephone conversations since the information
is not recorded. It would apply to voice mail since the information has
been recorded in or by a device similar to a computer. Likewise, video
records are not covered. Though when the video is transferred to a
website, it would be covered because of the involvement of the
computer. Music recorded by a computer system on a compact disc
would be covered.
In short, not all data recorded or stored in digital form is covered. A
computer or a similar device has to be involved in its creation or
storage. The term “similar device” does not extend to all devices that
create or store data in digital form. Although things that are not
recorded or preserved by or in a computer system are omitted from
this bill, these may well be admissible under other rules of law. This
provision focuses on replacing the search for originality proving the
reliability of systems instead of that of individual records and using
standards to show systems reliability.
Paper records that are produced directly by a computer system such
as printouts are themselves electronic records being just the means of
intelligible display of the contents of the record. Photocopies of the
printout would be paper record subject to the usual rules about copies,
but the original printout would be subject to the rules of admissibility
of this bill.
However, printouts that are used only as paper records and whose
computer origin is never again called on are treated as paper records.
In that case, the reliability of the computer system that produces the
record is irrelevant to its reliability.
Senator Magsaysay. Mr. President, if my memory does not fail me,
earlier, the lady Senator accepted that we use the term “Data
Message” rather than “ELECTRONIC RECORD” in being consistent with
the UNCITRAL term of “Data Message.” So with the new amendment
of defining “ELECTRONIC RECORD,” will this affect her accepting of
the use of “Data Message” instead of “ELECTRONIC RECORD”?
Senator Santiago. No, it will not. Thank you for reminding me. The
term I would like to insert is ELECTRONIC DATA MESSAGE in lieu of
“ELECTRONIC RECORD.”
Senator Magsaysay. Then we are, in effect, amending the term of the
definition of “Data Message” on page 2A, line 31, to which we have
no objection.
Senator Santiago. Thank you, Mr. President.
xxxx
Senator Santiago. Mr. President, I have proposed all the amendments
that I desire to, including the amendment on the effect of error or
change. I will provide the language of the amendment together with
the explanation supporting that amendment to the distinguished
sponsor and then he can feel free to take it up in any session without
any further intervention.
42
Senator Magsaysay. Before we end, Mr. President, I understand from Web site it would be, because of the involvement of the computer.
the proponent of these amendments that these are based on the Music recorded by a computer system on a compact disk would be
Canadian E-commerce Law of 1998. Is that not right? covered.

Senator Santiago. That is correct.” In short, not all data recorded or stored in “digital” form is covered. A
computer or similar device has to be involved in its creation or storage.
Thus, when the Senate consequently voted to adopt the term The term “similar device” does not extend to all devices that create or
“electronic data message,” it was consonant with the explanation of
store data in digital form. Although things that are not recorded or
Senator Miriam Defensor-Santiago that it would not apply “to telexes
preserved by or in a computer system are omitted from this Act, they
or faxes, except computer-generated faxes, unlike the United Nations
may well be admissible under other rules of law. This Act focuses on
model law on electronic commerce.” In explaining the term “electronic
replacing the search for originality, proving the reliability of systems
record” patterned after the E-Commerce Law of Canada, Senator
instead of that of individual records, and using standards to show
Defensor-Santiago had in mind the term “electronic data message.”
systems reliability.
This term then, while maintaining part of the UNCITRAL Model Law’s
terminology of “data message,” has assumed a different context, this Paper records that are produced directly by a computer system, such
time, consonant with the term “electronic record” in the law of as printouts, are themselves electronic records, being just the means
Canada. It accounts for the addition of the word “electronic” and the of intelligible display of the contents of the record. Photocopies of the
deletion of the phrase “but not limited to, electronic data interchange printout would be paper records subject to the usual rules about
(EDI), electronic mail, telegram, telex or telecopy.” Noteworthy is that copies, but the “original” printout would be subject to the rules of
the Uniform Law Conference of Canada, explains the term “electronic admissibility of this Act.
record,” as drafted in the Uniform Electronic Evidence Act, in a manner
However, printouts that are used only as paper records, and whose
strikingly similar to Sen. Santiago’s explanation during the Senate
computer origin is never again called on, are treated as paper records.
deliberations:
See subsection 4(2). In this case the reliability of the computer system
“Electronic record” fixes the scope of the Act. The record is the data. that produced the record is relevant to its reliability.”
The record may be any medium. It is “electronic” because it is
There is no question then that when Congress formulated the term
recorded or stored in or by a computer system or similar device. The
“electronic data message,” it intended the same meaning as the term
Act is intended to apply, for example, to data on magnetic strips on
“electronic record” in the Canada law. This construction of the term
cards, or in smart cards. As drafted, it would not apply to telexes or
“electronic data message,” which excludes telexes or faxes, except
faxes (except computer-generated faxes), unlike the United Nations
computer-generated faxes, is in harmony with the Electronic
Model Law on Electronic Commerce. It would also not apply to regular
Commerce Law’s focus on “paperless” communications and the
digital telephone conversations, since the information is not recorded.
“functional equivalent approach” that it espouses. In fact, the
It would apply to voice mail, since the information has been recorded
in or by a device similar to a computer. Likewise video records are not deliberations of the Legislature are replete with discussions on
paperless and digital transactions.
covered, though when the video is transferred to a

43
Facsimile transmissions are not, in this sense, “paperless,” but verily
are paper-based.
A facsimile machine, which was first patented in 1843 by Alexander
Bain, is a device that can send or receive pictures and text over a
telephone line. It works by digitizing an image—dividing it into a grid
of dots. Each dot is either on or off, depending on whether it is black
or white. Electronically, each dot is represented by a bit that has a
value of either 0 (off) or 1 (on). In this way, the fax machine translates
a picture into a series of zeros and ones (called a bit map) that can be
transmitted like normal computer data. On the receiving side, a fax
machine reads the incoming data, translates the zeros and ones back
into dots, and reprints the picture. A fax machine is essentially an
image scanner, a modem and a computer printer combined into a
highly specialized package. The scanner converts the content of a
physical document into a digital image, the modem sends the image
data over a phone line, and the printer at the other end makes a
duplicate of the original document. Thus, in Garvida v. Sales, Jr.,
where we explained the unacceptability of filing pleadings through fax
machines, we ruled that:
“A facsimile or fax transmission is a process involving the transmission
and reproduction of printed and graphic matter by scanning an original
copy, one elemental area at a time, and representing the shade or
tone of each area by a specified amount of electric current. The
current is transmitted as a signal over regular telephone lines or via
microwave relay and is used by the receiver to reproduce an image of
the elemental area in the proper position and the correct shade. The
receiver is equipped with a stylus or other device that produces a
printed record on paper referred to as a facsimile.
x x x A facsimile is not a genuine and authentic pleading. It is, at best,
an exact copy preserving all the marks of an original. Without the
original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed
by the party and his counsel. It may, in fact, be a sham pleading.”
Accordingly, in an ordinary facsimile transmission, there exists an
original paper-based information or data that is scanned, sent through
a phone line, and re-printed at the receiving end. Be it noted that in
enacting the Electronic Commerce Act of 2000, Congress intended
virtual or paperless writings to be the functional equivalent and to
have the same legal function as paper-based documents. Further, in
a virtual or paperless environment, technically, there is no original
copy to speak of, as all direct printouts of the virtual reality are the
same, in all respects, and are considered as originals.89 Ineluctably,
the law’s definition of “electronic data message,” which, as aforesaid,
is interchangeable with “electronic document,” could not have
included facsimile transmissions, which have an original paper-based
copy as sent and a paper-based facsimile copy as received. These two
copies are distinct from each other, and have different legal effects.
While Congress anticipated future developments in communications
and computer technology when it drafted the law, it excluded the early
forms of technology, like telegraph, telex and telecopy (except
computer-generated faxes, which is a newer development as
compared to the ordinary fax machine to fax machine transmission),
when it defined the term “electronic data message.”
Clearly then, the IRR went beyond the parameters of the law when it
adopted verbatim the UNCITRAL Model Law’s definition of “data
message,” without considering the intention of Congress when the
latter deleted the phrase “but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy.” The
inclusion of this phrase in the IRR offends a basic tenet in the exercise
of the rule-making power of administrative agencies. After all, the
power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is found in
the legislative enactment itself. The implementing rules and
regulations of a law cannot extend the law or expand its coverage, as
the power to amend or repeal a statute is vested in the Legislature.
Thus, if a discrepancy occurs between the basic law and an
implementing rule or regulation, it is the former that prevails, because
44
the law cannot be broadened by a mere administrative issuance—an
administrative agency certainly cannot amend an act of Congress. Had
the Legislature really wanted ordinary fax transmissions to be covered
by the mantle of the Electronic Commerce Act of 2000, it could have
easily lifted without a bit of tatter the entire wordings of the UNCITRAL
Model Law.
Incidentally, the National Statistical Coordination Board Task Force on
the Measurement of E-Commerce, on November 22, 2006,
recommended a working definition of “electronic commerce,” as
“[a]ny commercial transaction conducted through electronic, optical
and similar medium, mode, instrumentality and technology. The
transaction includes the sale or purchase of goods and services,
between individuals, households, businesses and governments
conducted over computer-mediated networks through the Internet,
mobile phones, electronic data interchange (EDI) and other channels
through open and closed networks.” The Task Force’s proposed
definition is similar to the Organization of Economic Cooperation and
Development’s (OECD’s) broad definition as it covers transactions
made over any network, and, in addition, it adopted the following
provisions of the OECD definition: (1) for transactions, it covers sale
or purchase of goods and services; (2) for channel/network, it
considers any computer-mediated network and NOT limited to
Internet alone; (3) it excludes transactions received/placed using fax,
telephone or non-interactive mail; (4) it considers payments done
online or offline; and (5) it considers delivery made online (like
downloading of purchased books, music or software programs) or
offline (deliveries of goods).
We, therefore, conclude that the terms “electronic data message” and
“electronic document,” as defined under the Electronic Commerce Act
of 2000, do not include a facsimile transmission. Accordingly, a
facsimile transmission cannot be considered as electronic evidence. It
is not the functional equivalent of an original under the Best Evidence
Rule and is not admissible as electronic evidence.
Since a facsimile transmission is not an “electronic data message” or
an “electronic document,” and cannot be considered as electronic
evidence by the Court, with greater reason is a photocopy of such a
fax transmission not electronic evidence. In the present case,
therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-
POSTS0401-2 (Exhibits “E” and “F”), which are mere photocopies of
the original fax transmittals, are not electronic evidence, contrary to
the position of both the trial and the appellate courts.
- III -
Nevertheless, despite the pro forma invoices not being electronic
evidence, this Court finds that respondent has proven by
preponderance of evidence the existence of a perfected contract of
sale.
In an action for damages due to a breach of a contract, it is essential
that the claimant proves (1) the existence of a perfected contract, (2)
the breach thereof by the other contracting party and (3) the damages
which he/she sustained due to such breach. Actori incumbit onus
probandi. The burden of proof rests on the party who advances a
proposition affirmatively.
In other words, a plaintiff in a civil action must establish his case by a
preponderance of evidence, that is, evidence that has greater weight,
or is more convincing than that which is offered in opposition to it.
In general, contracts are perfected by mere consent, which is
manifested by the meeting of the offer and the acceptance upon the
thing and the cause which are to constitute the contract. The offer
must be certain and the acceptance absolute. They are, moreover,
obligatory in whatever form they may have been entered into,
provided all the essential requisites for their validity are present. Sale,
being a consensual contract, follows the general rule that it is
perfected at the moment there is a meeting of the minds upon the
thing which is the object of the contract and upon the price. From that
45
moment, the parties may reciprocally demand performance, subject E-2 Conforme signature of Mr. To show that defendants
to the provisions of the law governing the form of contracts. Gregory Chan, contained in sent their confirmation of
facsimile/thermal paper the (i) delivery to it of the
The essential elements of a contract of sale are (1) consent or meeting
faxed by defendants to total of 220MT specified
of the minds, that is, to transfer ownership in exchange for the price,
plaintiff showing the stainless steel products, (ii)
(2) object certain which is the subject matter of the contract, and (3) printed transmission details defendants’ payment
cause of the obligation which is established. on the upper portion of said thereof by way of an
paper as coming from irrevocable letter of credit in
In this case, to establish the existence of a perfected contract of sale
defendant MCC on 26 Apr favor of plaintiff, among
between the parties, respondent Ssangyong formally offered in
00 08:41AM other conditions.
evidence the testimonies of its witnesses and the following exhibits:
F Pro forma Invoice dated 17 To show that defendants
Exhibit Description Purpose April 2000with Contract No. contracted with plaintiff for
ST2 delivery of POSTSO401-2,
photocopy another 110 MT
E Pro forma Invoice dated 17 To show that defendants
of stainless steel from Korea
April 2000 with Contract contracted with plaintiff for
payable by way of an
No. ST2-POSTS0401-1, the delivery of 110 MT of
irrevocable letter of credit in
photocopy stainless steel from Korea
favor of plaintiff, among
payable by way of an
other conditions.
irrevocable letter of credit in
favor of plaintiff, among G Letter to defendant SANYO To prove that defendants
other conditions. SEIKE dated 20 June 2000, were informed of the date
contained in of L/C opening and
E-1 Pro forma Invoice dated 17 To show that defendants
facsimile/thermal paper defendant’s
April 2000 with Contract sent their confirmation of
conforme/approval thereof.
No. ST2-POSTS0401, the (i) delivery to it of the
contained in specified stainless steel G-1 Signature of defendant
facsimile/thermal paper products, (ii) defendants’ Gregory Chan, contained in
faxed by defendants to payment thereof by way of facsimile/thermal paper.
plaintiff showing the an irrevocable letter of
printed transmission details credit in favor of plaintiff, H Letter to defendants dated To prove that defendants
on the upper portion of said among other conditions. 22 June 2000, original were informed of the
paper as coming from successful price
defendant MCC on 26 Apr adjustments secured by
00 08:41AM plaintiff in favor of former
and were advised of the
schedules of its L/C
opening.

46
I Letter to defendants dated To prove that plaintiff
26 June 2000, original repeatedly requested
defendants for the agreed
opening of the Letters of
Credit, defendants’ failure
and refusal to comply with
their obligations and the
problems of plaintiff is
incurring by reason of
defendants’ failure and
refusal to open the L/Cs.
J Letter to defendants dated
26 June 2000, original
K Letter to defendants dated
27 June 2000, original
L Facsimile message to
defendants dated 28 June
2000, photocopy
M Letter from defendants To prove that defendants
dated 29 June 2000, admit of their liabilities to
contained in plaintiff, that they
facsimile/thermal paper requested for “more
faxed by defendants extension” of time for the
plaintiff showing the printed
transmission details on the
upper portion of said paper
as coming from defendant
MCC on 29 June 00 11:12
AM
Opening of the Letter of
Credit, and begging for
favorable understanding
and consideration.
M-1 Signature of defendant
Gregory Chan, contained in
facsimile/thermal paper
faxed by defendants to
plaintiff showing the
printed transmission details
on the upper portion of said
paper as coming from
defendant MCC on June 00
11:12 AM
N Letter to defendants dated
29 June 2000, original
O Letter to defendants dated To prove that plaintiff
30 June 2000, photocopy reiterated its request for
defendants to L/C opening
after the latter’s request for
extension of time was
granted, defendants’ failure
and refusal to comply
therewith extension of time
notwithstanding.
P Letter to defendants dated
06 July 2000, original
Q Demand letter to To prove that plaintiff was
defendants dated 15 Aug constrained to engaged
2000, original services of a lawyer for
collection efforts.
47
R Demand letter to To prove that defendants
defendants dated 23 Aug opened the first L/C in favor
2000, original of plaintiff, requested for
further postponement of
the final L/C and for minimal
amounts, were urged to
open the final L/C on time,
and were informed that
failure to comply will cancel
the contract.
S Demand letter to To show defendants’ refusal
defendants dated 11 Sept and failure to open the final
2000, original L/C on time, the
cancellation of the contract
Notation “1/2,” photocopy as a consequence thereof,
and final demand upon
defendants to remit its
obligations.
W Letter from plaintiff To prove that there was a
SSANGYONG to defendant perfected sale and purchase
SANYO SEIKI dated 13 April agreement between the
2000, with fax back from parties for 220 metric tons
defendants SANYO of steel products at the
SEIKI/MCC to plaintiff price of US$1,860/ton.
SSANGYONG, cont ained in
facsimile/thermal paper
with back-up photocopy
W-1 Conforme signature of To prove that defendants,
defendant Gregory Chan, acting through Gregory
contained in Chan, agreed to the sale
facsimile/thermal paper and purchase of 220 metric
with back-up photocopy tons of steel products at the
price of US$1,860/ton.
W-2 Name of sender MCC To prove that defendants
Industrial Sales Corporation sent their conformity to the
sale and purchase
agreement by facsimile
transmission.
X Pro forma Invoice dated 16 To prove that defendant
August 2000, photocopy MCC agreed to adjust and
split the confirmed
purchase order into 2
shipments at 100 metric
tons each at the discounted
price of US$1,700/ton.
X-1 To prove that the present
Pro forma Invoice was the
first of 2 pro forma invoices.
X-2 Ref. No. ST2-POSTS080-1, To prove that the present
photocopy Pro forma Invoice was the
first of 2 pro forma invoices.
X-3 Conforme signature of To prove that defendant
defendant Gregory Chan, MCC, acting through
photocopy Gregory Chan, agreed to
the sale and purchase of the
balance of 100 metric tons
at the discounted price of
US$1,700/ton, apart from
the other order and
shipment of 100 metric tons
which was delivered by
plaintiff SSANGYONG and
paid for by defendant MCC.
48
DD Letter from defendant MCC To prove that there was a
to plaintiff SSANGYONG perfected sale and purchase
dated 22 August 2000, agreement between
contained in plaintiff SSANGYONG and
facsimile/thermal paper defendant MCC for the
with back-up photocopy balance of 100 metric tons,
apart from the other order
and shipment of 100 metric
tons which was delivered by
plaintiff SSANGYONG and
paid for by defendant MCC.
DD-2 Signature of defendant
Gregory Chan, contained in
facsimile/thermal paper
with back-up photocopy
To prove that defendant
MCC, acting through
Gregory Chan, agreed to
the sale and purchase of the
balance of 100 metric tons,
apart from the other order
and shipment of 100 metric
tons which was delivered by
plaintiff Ssangyong and
paid for by defendant MCC.

DD-1 Ref. No. ST2-POSTS080-1, To prove that there was a

contained in perfected sale and purchase
facsimile/thermal paper agreement between
with back-up photocopy plaintiff SSANGYONG and
defendant MCC for the
balance of 100 metric tons,
apart from the other order
and shipment of 100 metric
tons which was delivered by
plaintiff SSANGYONG and
paid for by defendant MCC.
Significantly, among these documentary evidence presented by
respondent, MCC, in its petition before this Court, assails the
admissibility only of Pro Forma Invoice Nos. ST2POSTS0401-1 and
ST2-POSTS0401-2 (Exhibits “E” and “F”). After sifting through the
records, the Court found that these invoices are mere photocopies of
their original fax transmittals. Ssangyong avers that these documents
were prepared after MCC asked for the splitting of the original order
into two, so that the latter can apply for an L/C with greater facility.
It, however, failed to explain why the originals of these documents
were not presented.

To determine whether these documents are admissible in evidence,

we apply the ordinary Rules on Evidence, for as discussed above we
cannot apply the Electronic Commerce Act of 2000 and the Rules on
Electronic Evidence.

Because these documents are mere photocopies, they are simply

secondary evidence, admissible only upon compliance with Rule 130,
Section 5, which states, “[w]hen the original document has been lost
or destroyed, or cannot be produced in court, the offeror, upon proof
of its execution or existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy, or by a recital

49
of its contents in some authentic document, or by the testimony of
witnesses in the order stated.” Furthermore, the offeror of secondary
evidence must prove the predicates thereof, namely: (a) the loss or
destruction of the original without bad faith on the part of the
proponent/offeror which can be shown by circumstantial evidence of
routine practices of destruction of documents; (b) the proponent must
prove by a fair preponderance of evidence as to raise a reasonable
inference of the loss or destruction of the original copy; and (c) it must
be shown that a diligent and bona fide but unsuccessful search has
been made for the document in the proper place or places. It has been
held that where the missing document is the foundation of the action,
more strictness in proof is required than where the document is only
collaterally involved.
Given these norms, we find that respondent failed to prove
existence of the original fax transmissions of Exhibits E and F,
likewise did not sufficiently prove the loss or destruction of
originals. Thus, Exhibits E and F cannot be admitted in evidence
accorded probative weight.
It is observed, however, that respondent Ssangyong did not rely
merely on Exhibits E and F to prove the perfected contract. It also
introduced in evidence a variety of other documents, as enumerated
above, together with the testimonies of its witnesses. Notable among
them are Pro Forma Invoice Nos. ST2-POSTS080-1 and ST2-
POSTS080-2 which were issued by Ssangyong and sent via fax to MCC.
As already mentioned, these invoices slightly varied the terms of the
earlier invoices such that the quantity was now officially 100MT per
invoice and the price reduced to US$1,700.00 per MT. The copies of
the said August 16, 2000 invoices submitted to the court bear the
conformity signature of MCC Manager Chan.
Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit “X”), however, is a
mere photocopy of its original. But then again, petitioner MCC does
not assail the admissibility of this document in the instant petition.
Verily, evidence not objected to is deemed admitted and may be
validly considered by the court in arriving at its judgment. Issues not
raised on appeal are deemed abandoned.
As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits “1-A” and “2-
C”), which was certified by PCIBank as a true copy of its original, it
was, in fact, petitioner MCC which introduced this document in
evidence. Petitioner MCC paid for the order stated in this invoice. Its
admissibility, therefore, is not open to question.
These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-
POSTS080-2), along with the other unchallenged documentary
evidence of respondent Ssangyong, preponderate in favor of the claim
that a contract of sale was perfected by the parties.
This Court also finds merit in the following observations of the trial
the court:
and
the “Defendants presented Letter of Credit (Exhibits “1,” “1-A” to “1-R”)
and referring to Pro Forma Invoice for Contract No. ST2POSTS080-2, in
the amount of US$170,000.00, and which bears the signature of
Gregory Chan, General Manager of MCC. Plaintiff, on the other hand,
presented Pro Forma Invoice referring to Contract No. ST2-POSTS080-
1, in the amount of US$170,000.00, which likewise bears the signature
of Gregory Chan, MCC. Plaintiff accounted for the notation “1/2” on
the right upper portion of the Invoice, that is, that it was the first of
two (2) pro forma invoices covering the subject contract between
plaintiff and the defendants. Defendants, on the other hand, failed to
account for the notation “2/2” in its Pro Forma Invoice (Exhibit “1-A”).
Observably further, both Pro Forma Invoices bear the same date and
details, which logically mean that they both apply to one and the same
transaction.”
Indeed, why would petitioner open an L/C for the second half of the
transaction if there was no first half to speak of?
The logical chain of events, as gleaned from the evidence of both
parties, started with the petitioner and the respondent agreeing on
the sale and purchase of 220MT of stainless steel at US$1,860.00 per
50
MT. This initial contract was perfected. Later, as petitioner asked for
several extensions to pay, adjustments in the delivery dates, and
discounts in the price as originally agreed, the parties slightly varied
the terms of their contract, without necessarily novating it, to the
effect that the original order was reduced to 200MT, split into two
deliveries, and the price discounted to US$1,700 per MT. Petitioner,
however, paid only half of its obligation and failed to open an L/C for
the other 100MT. Notably, the conduct of both parties sufficiently
established the existence of a contract of sale, even if the writings of
the parties, because of their contested admissibility, were not as
explicit in establishing a contract.
Appropriate conduct by the parties may be sufficient to establish an
agreement, and while there may be instances where the exchange of
correspondence does not disclose the exact point at which the deal
was closed, the actions of the parties may indicate that a binding
obligation has been undertaken.
With our finding that there is a valid contract, it is crystalclear that
when petitioner did not open the L/C for the first half of the transaction
(100MT), despite numerous demands from respondent Ssangyong,
petitioner breached its contractual obligation. It is a well-entrenched
rule that the failure of a buyer to furnish an agreed letter of credit is
a breach of the contract between buyer and seller. Indeed, where the
buyer fails to open a letter of credit as stipulated, the seller or exporter
is entitled to claim damages for such breach. Damages for failure to
open a commercial credit may, in appropriate cases, include the loss
of profit which the seller would reasonably have made had the
transaction been carried out.
- IV -
This Court, however, finds that the award of actual damages is not in
accord with the evidence on record. It is axiomatic that actual or
compensatory damages cannot be presumed, but must be proven with
a reasonable degree of certainty. In Villafuerte v. Court of Appeals,
we explained that:
“Actual or compensatory damages are those awarded in order to
compensate a party for an injury or loss he suffered. They arise out
of a sense of natural justice and are aimed at repairing the wrong
done. Except as provided by law or by stipulation, a party is entitled
to an adequate compensation only for such pecuniary loss as he has
duly proven. It is hornbook doctrine that to be able to recover actual
damages, the claimant bears the onus of presenting before the court
actual proof of the damages alleged to have been suffered, thus:
A party is entitled to an adequate compensation for such pecuniary
loss actually suffered by him as he has duly proved. Such damages,
to be recoverable, must not only be capable of proof, but must actually
be proved with a reasonable degree of certainty. We have emphasized
that these damages cannot be presumed and courts, in making an
award must point out specific facts which could afford a basis for
measuring whatever compensatory or actual damages are borne.”
In the instant case, the trial court awarded to respondent Ssangyong
US$93,493.87 as actual damages. On appeal, the same was affirmed
by the appellate court. Noticeably, however, the trial and the appellate
courts, in making the said award, relied on the following documents
submitted in evidence by the respondent: (1) Exhibit “U,” the
Statement of Account dated March 30, 2001; (2) Exhibit “U-1,” the
details of the said Statement of Account); (3) Exhibit “V,” the contract
of the alleged resale of the goods to a Korean corporation; and (4)
Exhibit “V-1,” the authentication of the resale contract from the
Korean Embassy and certification from the Philippine Consular Office.
The statement of account and the details of the losses sustained by
respondent due to the said breach are, at best, self-serving. It was
respondent Ssangyong itself which prepared the said documents. The
items therein are not even substantiated by official receipts. In the
absence of corroborative evidence, the said statement of account is
not sufficient basis to award actual damages. The court cannot simply
rely on speculation, conjecture or guesswork as to the fact and
amount of damages, but must depend on competent proof that the
claimant had suffered, and on evidence of, the actual amount thereof.
51
Furthermore, the sales contract and its authentication certificates, List of commodities as stated in Exhibit “X” (the invoice that was not
Exhibits “V” and “V-1,” allegedly evidencing the resale at a loss of the paid):
stainless steel subject of the parties’ breached contract, fail to
DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304
convince this Court of the veracity of its contents. The steel items
indicated in the sales contract with a Korean corporation are different SIZE AND QUANTITY:
in all respects from the items ordered by petitioner MCC, even in size
and quantity. We observed the following discrepancies: 2.6 MM X 4’ X C 10.0MT

List of commodities as stated in Exhibit “V”: 3.0 MM X 4’ X C 25.0MT

COMMODITY: Stainless Steel HR Sheet in Coil, Slit Edge 4.0 MM X 4’ X C 15.0MT

SPEC: SUS304 NO. 1 4.5 MM X 4’ X C 15.0MT

SIZE/Q’TY: 5.0 MM X 4’ X C 10.0MT

2.8MM X 1,219MM X C 8.193MT 6.0 MM X 4’ X C 25.0MT

3.0MM X 1,219MM X C 7.736MT TOTAL: 100MT

3.0MM X 1,219MM X C 7.885MT From the foregoing, we find merit in the contention of MCC that
Ssangyong did not adequately prove that the items resold at a loss
3.0MM X 1,219MM X C 8.629MT were the same items ordered by the petitioner. Therefore, as the claim
for actual damages was not proven, the Court cannot sanction the
4.0MM X 1,219MM X C 7.307MT
award.
4.0MM X 1,219MM X C 7.247MT
Nonetheless, the Court finds that petitioner knowingly breached its
4.5MM X 1,219MM X C 8.450MT contractual obligation and obstinately refused to pay despite repeated
demands from respondent. Petitioner even asked for several
4.5MM X 1,219MM X C 8.870MT
extensions of time for it to make good its obligation. But in spite of
5.0MM X 1,219MM X C 8.391MT respondent’s continuous accommodation, petitioner completely
reneged on its contractual duty. For such inattention and insensitivity,
6.0MM X 1,219MM X C 6.589MT MCC must be held liable for nominal damages. “Nominal damages are
‘recoverable where a legal right is technically violated and must be
6.0MM X 1,219MM X C 7.878MT
vindicated against an invasion that has produced no actual present
6.0MM X 1,219MM X C 8.397MT loss of any kind or where there has been a breach of contract and no
substantial injury or actual damages whatsoever have been or can be
TOTAL: 95.562MT115 shown.” Accordingly, the Court awards nominal damages of
P200,000.00 to respondent Ssangyong.

52
As to the award of attorney’s fees, it is well settled that no premium
should be placed on the right to litigate and not every winning party
is entitled to an automatic grant of attorney’s fees. The party must
show that he falls under one of the instances enumerated in Article
2208 of the Civil Code.118 In the instant case, however, the Court
finds the award of attorney’s fees proper, considering that petitioner
MCC’s unjustified refusal to pay has compelled respondent Ssangyong
to litigate and to incur expenses to protect its rights.
WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLY
GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No.
82983 is MODIFIED in that the award of actual damages is DELETED.
However, petitioner is ORDERED to pay respondent NOMINAL
DAMAGES in the amount of P200,000.00, and the ATTORNEY’S FEES
as awarded by the trial court.
SO ORDERED.
Ynares-Santiago (Chairperson), Austria-Martinez, ChicoNazario
and Reyes, JJ., concur.
Petition partially granted, judgment modified.
Notes.—Only the original document is the best evidence of the fact as
to whether the heirs executed a Deed of Partition wherein the entire
inherited property was conveyed to only one of them. (Santos vs.
Santos, 342 SCRA 753 [2000])
Under Section 3, Rule 130, Rules of Court, the original documents
must be produced and no evidence shall be admissible other than the
original document itself. (Llemos vs. Llemos, 513 SCRA 128 [2007])
——o0o——
VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF
REPRESENTATIVES COMMITTEES ON PUBLIC
INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL
DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND
ELECTORAL REFORMS, respondents
G.R. No. 170338. December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI,
petitioners, vs. THE SENATE OF THE REPUBLIC OF THE
PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT
THE HONORABLE MANUEL VILLAR, respondent
G.R. No. 179275. December 23, 2008
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention.
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO,
RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B.
LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors.
Remedial Law; Actions; Legal Standing; Concept of legal standing or
locus standi explained in Tolentino vs COMELEC.—In Tolentino v.
COMELEC, 420 SCRA 438 (2004), we explained that “ ‘[l]egal standing’
or locus standi refers to a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury because
of the challenged governmental act x x x,” thus, generally, a party will
be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because 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. The gist of the question of standing is whether a
party has “alleged such 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.”
53
Same; Same; Same; In recent cases, Court has relaxed the stringent
direct injury test. — Considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent direct
injury test. David v. Macapagal-Arroyo, 489 SCRA 160 (2006),
articulates that a “liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute
actions involving the constitutionality or validity of laws, regulations
and rulings.” The fairly recent Chavez v. Gonzales, 545 SCRA 441
(2008), even permitted a non-member of the broadcast media, who
failed to allege a personal stake in the outcome of the controversy, to
challenge the acts of the Secretary of Justice and the National
Telecommunications Commission. The majority, in the said case,
echoed the current policy that “this Court has repeatedly and
consistently refused to wield procedural barriers as impediments to its
addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Court’s duty under the 1987
Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution
and the laws, and that they have not abused the discretion given to
them.”
Same; Same; Moot and Academic; Court dismissed G.R. No. 170338
for being moot and academic; The exercise by the Court of judicial
power is limited to the determination and resolution of actual cases
and controversies. — The Court, however, dismisses G.R. No. 170338
for being moot and academic. Repeatedly stressed in our prior
decisions is the principle that the exercise by this Court of judicial
power is limited to the determination and resolution of actual cases
and controversies. By actual cases, we mean existing conflicts
appropriate or ripe for judicial determination, not conjectural or
anticipatory, for otherwise the decision of the Court will amount to an
advisory opinion. The power of judicial inquiry does not extend to
hypothetical questions because any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Neither will the Court determine a moot
question in a case in which no practical relief can be granted. A case
becomes moot when its purpose has become stale. It is unnecessary
to indulge in academic discussion of a case presenting a moot question
as a judgment thereon cannot have any practical legal effect or, in the
nature of things, cannot be enforced.
Constitutional Law; Legislative Inquiry; Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without
duly published rules of procedure; The requisite of publication of the
rules is intended to satisfy the basic requirements of due process. —
As to the petition in G.R. No. 179275, the Court grants the same. The
Senate cannot be allowed to continue with the conduct of the
questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that
“[t]he Senate or the House of Representatives, or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure.” The requisite of publication
of the rules is intended to satisfy the basic requirements of due
process. Publication is indeed imperative, for it will be the height of
injustice to punish or otherwise burden a citizen for the transgression
of a law or rule of which he had no notice whatsoever, not even a
constructive one. What constitutes publication is set forth in Article 2
of the Civil Code, which provides that “[l]aws shall take effect after 15
days following the completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the Philippines.”
The respondents in G.R. No. 179275 admit in their pleadings and even
on oral argument that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation had been published in newspapers of
general circulation only in 1995 and in 2006. With respect to the
present Senate of the 14th Congress, however, of which the term of
half of its members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they first opened
their session.
Same; Same; The absence of any amendment to the rules cannot
justify the Senate’s defiance of the clear and unambiguous language
54
of Section 21, Article VI of the Constitution; The constitutional
mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.—Respondents justify their non-
observance of the constitutionally mandated publication by arguing
that the rules have never been amended since 1995 and, despite that,
they are published in booklet form available to anyone for free, and
accessible to the public at the Senate’s internet web page. The Court
does not agree. The absence of any amendment to the rules cannot
justify the Senate’s defiance of the clear and unambiguous language
of Section 21, Article VI of the Constitution. The organic law instructs,
without more, that the Senate or its committees may conduct inquiries
in aid of legislation only in accordance with duly published rules of
procedure, and does not make any distinction whether or not these
rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice
or tradition followed by the Senate.
Same; Same; Statutes; Internet; Republic Act (R.A.) No. 8792,
otherwise known as the Electronic Commerce Act of 2000, does not
make the internet a medium for publishing laws, rules and regulations.
— The invocation by the respondents of the provisions of R.A. No.
8792, otherwise known as the Electronic Commerce Act of 2000, to
support their claim of valid publication through the internet is all the
more incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written
document only for evidentiary purposes. In other words, the law
merely recognizes the admissibility in evidence (for their being the
original) of electronic data messages and/or electronic documents. It
does not make the internet a medium for publishing laws, rules and
regulations.
Same; Same; The recent publication does not cure the infirmity of the
inquiry sought to be prohibited by the instant petitions. — The Senate
caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this fact, the
recent publication does not cure the infirmity of the inquiry sought to
be prohibited by the instant petitions. Insofar as the consolidated
cases are concerned, the legislative investigation subject thereof still
could not be undertaken by the respondent Senate Committees,
because no published rules governed it, in clear contravention of the
Constitution.
PUNO, C.J., Dissenting Opinion:
Constitutional Law; Legislative Inquiry; A faithful adherence of the
case at bar to the Neri Ruling would yield the conclusion that the “Garci
tapes” investigation may be conducted even without the published
Rules of Procedure Governing Inquiries, and that only those orders
and proceedings that result in the violation of the rights of the
witnesses may be considered null and void.—It will be recalled that in
the March 25 Neri Decision, the Court struck down not the entire
proceedings of the Senate investigation on the NBN-ZTE deal for want
of published Rules of Procedure Governing Inquiries, but only the
Order dated January 30, 2008, citing petitioner Romulo L. Neri in
contempt of the Senate Committees and directing his arrest and
detention (January 30 Contempt Order) as stated in the dispositive
portion of the Decision. A faithful adherence of the case at bar to the
Neri Ruling would yield the conclusion that the “Garci tapes”
investigation may be conducted even without the published Rules of
Procedure Governing Inquiries, and that only those orders and
proceedings that result in the violation of the rights of the witnesses
may be considered null and void. The ponencia did not, however,
show which orders or proceedings resulted in this violation and,
instead, made a blanket prohibition of the conduct of the “Garci tapes”
investigation for want of published Rules of Procedure Governing
Inquiries.
Same; Same; In both the March 25 Neri Decision and the September
4 Neri Resolution, the Court did not invalidate the entire Senate
investigation proceedings conducted in accordance with the Rules of
Procedure Governing Inquiries, which were not published in the 14th
Congress.—In both the March 25 Neri Decision and the September 4
55
Neri Resolution, the Court did not invalidate the entire Senate
investigation proceedings conducted in accordance with the Rules of
Procedure Governing Inquiries, which were not published in the 14th
Congress. In fact, the Court ruled on the issue of executive privilege
raised in said proceedings. It struck down only the January 30
Contempt Order against therein petitioner Neri for failure to comply
with Section 18 of the Rules of Procedure Governing Inquiries, while
at the same time holding these rules as constitutionally infirm for want
of publication.
Same; Same; The continuing effectivity of the Senate Rules from one
Congress to the next, which the Court acknowledged in its September
4 Neri Resolution, evinces the nature of the Senate as a continuing
body governed by its continuing Senate Rules. — The continuing
effectivity of the Senate Rules from one Congress to the next, which
the Court acknowledged in its September 4 Neri Resolution, evinces
the nature of the Senate as a continuing body governed by its
continuing Senate Rules. If the Senate were not a continuing body,
there would be no reason for the Senate Rules to likewise have a
continuing effect. In contradistinction, the effectivity of the Rules of
Proceedings of the House of Representatives (House Rules)—which is
admittedly not a continuing body, as the terms of all congressmen end
at the same time—terminates upon the expiration of one Congress.
Thus, Rule 1, Section 1 of the 14th Congress House Rules adopted on
November 20, 2007 reflects the practice of the House of
Representatives of adopting rules of proceedings on its first meeting
and organization upon the opening of a succeeding Congress.
Same; Same; As a general rule, one-time publication suffices to satisfy
the due process requirement to inform the public of a rule that would
govern it and affect its rights. — As a general rule, one-time
publication suffices to satisfy the due process requirement to inform
the public of a rule that would govern it and affect its rights. It is not
uncommon for laws and rules to provide that they shall take effect
upon a certain date following publication in a newspaper of general
circulation without having to state that they “shall remain in force until
they are amended or repealed” for them to have continuing effect.
These laws and rules are published only once, and yet they continue
to be in force. The Court itself employs this language in its rules as
shown in the recently promulgated Rule on the Writ of Habeas Data
and Rule on the Writ of Amparo.
Same; Same; The exception to the general rule that one-time
publication suffices for a law or rule to have continuing effect is when
there are circumstances or factors that interrupt this continuity. — The
exception to the general rule that one-time publication suffices for a
law or rule to have continuing effect is when there are circumstances
or factors that interrupt this continuity. An example is the
discontinuation of the existence of the House of Representatives as a
legislative body, which terminates the effectivity of its published Rules
of Procedure Governing Inquiries and requires the publication of these
rules in the succeeding Congress for them to take effect. As discussed
above and in my Dissents to the March 25 Neri Decision and
September 4 Neri Resolution, the Senate, unlike the House of
Representatives, is a continuing body. Thus, contrary to the holding
of the ponencia, the Senate’s Rules of Procedure Governing Inquiries,
sans amendment, need not be published by the Senate of every
Congress and need not also state that they shall “remain in force until
they are amended or repealed” for them to be effective from one
Congress to the next. Quite the opposite of the ponencia’s ruling, in
the absence of language stating that the Rules of Procedure Governing
Inquiries shall not continue in effect from one Congress to the next,
these rules shall have continuing effect.
Same; Anti-Wiretapping Law; What Republic Act (R.A.) 4200 penalizes
are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. — A
private communication is characterized as such based not on the
content of the communication, but on the context that it was said in
private and not for public consumption. That the content or nature of
the communication is immaterial was ruled in Ramirez v. Court of
Appeals, 248 SCRA 590 (1995), viz.: ... the nature of the conversations
56
is immaterial to a violation of the statute. The substance of the same (3) that there are no other means readily available for obtaining such
need not be specifically alleged in the information. What R.A. 4200 evidence.
penalizes are the acts of secretly overhearing, intercepting or
Same; Same; Republic Act (R.A.) No. 4200 makes illegally wiretapped
recording private communications by means of the devices
communications inadmissible in any proceeding. — To further give
enumerated therein. The mere allegation that an individual made a
teeth to the above prohibition, R.A. No. 4200 makes illegally
secret recording of a private communication by means of a tape
wiretapped communications inadmissible in any proceeding, viz.:
recorder would suffice to constitute an offense under Section 1 of R.A.
Section 4. Any communication or spoken word, or the existence,
4200.
contents, substance, purport, effect, or meaning of the same or any
Same; Same; Republic Act (R.A.) No. 4200 provides for exceptions part thereof, or any information therein contained obtained or secured
when wiretapping is allowed by written order of the court. — R.A. No. by any person in violation of the preceding sections of this Act shall
4200, however, provides for exceptions when wiretapping is allowed not be admissible in evidence in any judicial, quasi-judicial, legislative
by written order of the court under Section 3, viz.: Section 3. Nothing or administrative hearing or investigation.
contained in this Act, however, shall render it unlawful or punishable
Same; Same; The exception under Section 1 in relation to Section 3
for any peace officer, who is authorized by a written order of the Court,
of Republic Act (R.A.) No. 4200 does not include the use of illegally
to execute any of the acts declared to be unlawful in the two preceding
wiretapped communication for purposes of prosecuting violations of
sections in cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high seas, R.A. No. 4200 itself.—The exception under Section 1 in relation to
Section 3 of R.A. No. 4200 does not include the use of illegally
rebellion, conspiracy and proposal to commit rebellion, inciting to
wiretapped communication for purposes of prosecuting violations of
rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
R.A. No. 4200 itself as the Court did in Ramirez. Not reading this
kidnapping as defined by the Revised Penal Code, and violations of
exception into the law would impede the prosecution of the acts it
Commonwealth Act No. 616, punishing espionage and other offenses
prohibits and contradict the very purpose for adopting the law as
against national security: Provided, That such written order shall only
clearly stated in its title, “An Act to Prohibit and Penalize Wire Tapping
be issued or granted upon written application and the examination
and Other Related Violations of the Privacy of Communication, and for
under oath or affirmation of the applicant and the witnesses he may
Other Purposes.” Well-settled is the rule in statutory construction that
produce and a showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated hereinabove has been “where there is ambiguity, such interpretation as will avoid
inconvenience and absurdity is to be adopted.” Interpretatio talis in
committed or is being committed or is about to be committed:
Provided, however, That in cases involving the offenses of rebellion, ambiguis semper frienda est, ut evitatur inconveniens et absurdum.
R.A. No. 4200 should be given a sensible construction, so as to give
conspiracy and proposal to commit rebellion, inciting to rebellion,
effect to its rationale and intent and thus avoid an unjust or absurd
sedition, conspiracy to commit sedition, and inciting to sedition, such
interpretation. The ineluctable conclusion is that the use of illegally
authority shall be granted only upon prior proof that a rebellion or acts
wiretapped communication must be allowed in a prosecution under
of sedition, as the case may be, have actually been or are being
R.A. No. 4200 precisely to deter the commission of illegal wiretapping.
committed; (2) that there are reasonable grounds to believe that
evidence will be obtained essential to the conviction of any person for, REYES, J., Concurring and Dissenting Opinion:
or to the solution of, or to the prevention of, any of such crimes; and

57
Remedial Law; Actions; Moot and Academic; While it is true that the
Court is not absolutely precluded from resolving issues that are
otherwise moot, no compelling circumstance is present here that
would warrant the exercise of judicial review. — One of the requisites
of judicial power is the presence of an actual controversy. Courts are
prohibited from deciding hypothetical, conjectural or anticipatory
questions despite their vast judicial power. Otherwise, a decision
rendered would amount to nothing but an advisory opinion, which
would not augur well with the function of courts as arbiters of
controversies. While it is true that the Court is not absolutely precluded
from resolving issues that are otherwise moot, no compelling
circumstance is present here that would warrant the exercise of
judicial review.
Same; Same; Same; When a case is impressed with public interest, a
relaxation of the application of the rules is in order. — Courts should
not be shackled by stringent rules which would result in manifest
injustice. Rules of procedure are tools crafted to facilitate, not to
frustrate, the attainment of justice. Thus, their strict and rigid
application, if they result in technicalities that tend to frustrate rather
than promote substantial justice, must be eschewed. Substantial
rights must not be prejudiced by a rigid and technical application of
the rules in the altar of expediency. When a case is impressed with
public interest, a relaxation of the application of the rules is in order.
Time and again, this Court has suspended its own rules and excepted
a particular case from their operation whenever the higher interests
of justice so require.
Constitutional Law; Legislative Inquiry; There is nothing in the
constitutional provision that commands that every new Congress must
publish its rules of procedure. — The Constitutional provision requiring
publication of Senate rules is contained in Section 21, Article VI of the
1987 Constitution, which reads: The Senate or the House of
Representatives or any of its respective Committees may conduct
inquiries in aid of legislation in accordance with its duly published rules
of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. The above provision only requires a “duly
published” rule of procedure for inquiries in aid of legislation. It is
silent on republication. There is nothing in the constitutional provision
that commands that every new Congress must publish its rules of
procedure. Implicitly, republication is necessary only when there is an
amendment or revision to the rules. This is required under the due
process clause of the Constitution.
SPECIAL CIVIL ACTIONS in the Supreme Court. Prohibition.
The facts are stated in the opinion of the Court.
Eddie U. Tamondong, Tomas A. Garcillano and Rodolfo G. Palattao
for Virgilio O. Garcillano.
M.M. Lazaro & Associates for petitioners.
Ongkiko, Kalaw, Manhit & Acorda Law Offices for petitioner in G.R.
No. 179275.
Leonardo B. Palicte III for public respondents.
Gana & Manlangit Law Office for respondents-intervenors.
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped
conversation purportedly between the President of the Philippines and
a high-ranking official of the Commission on Elections (COMELEC)
surfaced. They captured unprecedented public attention and thrust
the country into a controversy that placed the legitimacy of the
present administration on the line, and resulted in the near-collapse
of the Arroyo government. The tapes, notoriously referred to as the
“Hello Garci” tapes, allegedly contained the President’s instructions to
COMELEC Commissioner Virgilio Garcillano to manipulate in her favor
results of the 2004 presidential elections. These recordings were to
become the subject of heated legislative hearings conducted
separately by committees of both Houses of Congress.
58
In the House of Representatives (House), on June 8, 2005, then
Minority Floor Leader Francis G. Escudero delivered a privilege speech,
“Tale of Two Tapes,” and set in motion a congressional investigation
jointly conducted by the Committees on Public Information, Public
Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms
(respondent House Committees). During the inquiry, several versions
of the wiretapped conversation emerged. But on July 5, 2005, National
Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan
Paguia and the lawyer of former NBI Deputy Director Samuel Ong
submitted to the respondent House Committees seven alleged
“original” tape recordings of the supposed three-hour taped
conversation. After prolonged and impassioned debate by the
committee members on the admissibility and authenticity of the
recordings, the tapes were eventually played in the chambers of the
House.
On August 3, 2005, the respondent House Committees decided to
suspend the hearings indefinitely. Nevertheless, they decided to
prepare committee reports based on the said recordings and the
testimonies of the resource persons.
Alarmed by these developments, petitioner Virgilio O. Garcillano
(Garcillano) filed with this Court a Petition for Prohibition and
Injunction, with Prayer for Temporary Restraining Order and/or Writ
of Preliminary Injunction docketed as G.R. No. 170338. He prayed that
the respondent House Committees be restrained from using these
tape recordings of the “illegally obtained” wiretapped conversations in
their committee reports and for any other purpose. He further
implored that the said recordings and any reference thereto be
ordered stricken off the records of the inquiry, and the respondent
House Committees directed to desist from further using the recordings
in any of the House proceedings.
Without reaching its denouement, the House discussion and debates
on the “Garci tapes” abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson
roused the slumbering issue with a privilege speech, “The Lighthouse
That Brought Darkness.” In his discourse, Senator Lacson promised to
provide the public “the whole unvarnished truth—the what’s, when’s,
where’s, who’s and why’s” of the alleged wiretap, and sought an
inquiry into the perceived willingness of telecommunications providers
to participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacson’s speech was
referred to the Senate Committee on National Defense and Security,
chaired by Senator Rodolfo Biazon, who had previously filed two bills
seeking to regulate the sale, purchase and use of wiretapping
equipment and to prohibit the Armed Forces of the Philippines (AFP)
from performing electoral duties.
In the Senate’s plenary session the following day, a lengthy debate
ensued when Senator Richard Gordon aired his concern on the
possible transgression of Republic Act (R.A.) No. 4200 if the body were
to conduct a legislative inquiry on the matter. On August 28, 2007,
Senator Miriam Defensor-Santiago delivered a privilege speech,
articulating her considered view that the Constitution absolutely bans
the use, possession, replay or communication of the contents of the
“Hello Garci” tapes. However, she recommended a legislative
investigation into the role of the Intelligence Service of the AFP
(ISAFP), the Philippine National Police or other government entities in
the alleged illegal wiretapping of public officials.
On September 6, 2007, petitioners Santiago Ranada and Oswaldo
Agcaoili, retired justices of the Court of Appeals, filed before this Court
a Petition for Prohibition with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction, docketed as
G.R. No. 179275, seeking to bar the Senate from conducting its
scheduled legislative inquiry. They argued in the main that the
intended legislative inquiry violates R.A. No. 4200 and Section 3,
Article III of the Constitution.
59
As the Court did not issue an injunctive writ, the Senate proceeded
with its public hearings on the “Hello Garci” tapes on September 7, 17
and October 1, 2007.
Intervening as respondents, Senators Aquilino Q. Pimentel, Jr.,
Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson,
Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes
filed their Comment on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP
and one of the resource persons summoned by the Senate to appear
and testify at its hearings, moved to intervene as petitioner in G.R.
No. 179275.
On November 20, 2007, the Court resolved to consolidate G.R. Nos.
170338 and 179275.
It may be noted that while both petitions involve the “Hello Garci”
recordings, they have different objectives—the first is poised at
preventing the playing of the tapes in the House and their subsequent
inclusion in the committee reports, and the second seeks to prohibit
and stop the conduct of the Senate inquiry on the wiretapped
conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the
second, G.R. No. 179275.
-I-
Before delving into the merits of the case, the Court shall first resolve
the issue on the parties’ standing, argued at length in their pleadings.
In Tolentino v. COMELEC, we explained that “ ‘[l]egal standing’ or
locus standi refers to a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury because of the
challenged governmental act x x x,” thus,
“generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened injury
because 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.”
The gist of the question of standing is whether a party has “alleged
such 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.”
However, considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent direct
injury test. David v. Macapagal-Arroyo articulates that a “liberal policy
has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.” The fairly
recent Chavez v. Gonzales even permitted a non-member of the
broadcast media, who failed to allege a personal stake in the outcome
of the controversy, to challenge the acts of the Secretary of Justice
and the National Telecommunications Commission. The majority, in
the said case, echoed the current policy that “this Court has repeatedly
and consistently refused to wield procedural barriers as impediments
to its addressing and resolving serious legal questions that greatly
impact on public interest, in keeping with the Court’s duty under the
1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution
and the laws, and that they have not abused the discretion given to
them.”
In G.R. No. 170338, petitioner Garcillano justifies his standing to
initiate the petition by alleging that he is the person alluded to in the
“Hello Garci” tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the
recordings. Obviously, therefore, petitioner Garcillano stands to be
directly injured by the House committees’ actions and charges of
60
electoral fraud. The Court recognizes his standing to institute the
petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their
standing by alleging that they are concerned citizens, taxpayers, and
members of the IBP. They are of the firm conviction that any attempt
to use the “Hello Garci” tapes will further divide the country. They wish
to see the legal and proper use of public funds that will necessarily be
defrayed in the ensuing public hearings. They are worried by the
continuous violation of the laws and individual rights, and the blatant
attempt to abuse constitutional processes through the conduct of
legislative inquiries purportedly in aid of legislation.
Intervenor Sagge alleges violation of his right to due process
considering that he is summoned to attend the Senate hearings
without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation, but also of the intended legislation which underpins
the investigation. He further intervenes as a taxpayer bewailing the
useless and wasteful expenditure of public funds involved in the
conduct of the questioned hearings.
Given that petitioners Ranada and Agcaoili allege an interest in the
execution of the laws and that intervenor Sagge asserts his
constitutional right to due process, they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of
the Republic.
Following the Court’s ruling in Francisco, Jr. v. The House of
Representatives, we find sufficient petitioners Ranada’s and Agcaoili’s
and intervenor Sagge’s allegation that the continuous conduct by the
Senate of the questioned legislative inquiry will necessarily involve the
expenditure of public funds. It should be noted that in Francisco, rights
personal to then Chief Justice Hilario G. Davide, Jr. had been injured
by the alleged unconstitutional acts of the House of Representatives,
yet the Court granted standing to the petitioners therein for, as in this
case, they invariably invoked the vindication of their own rights—as
taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal profession—which were
also supposedly violated by the therein assailed unconstitutional acts.
Likewise, a reading of the petition in G.R. No. 179275 shows that the
petitioners and intervenor Sagge advance constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. The issues are of transcendental and
paramount importance not only to the public but also to the Bench
and the Bar, and should be resolved for the guidance of all.
Thus, in the exercise of its sound discretion and given the liberal
attitude it has shown in prior cases climaxing in the more recent case
of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.
- II -
The Court, however, dismisses G.R. No. 170338 for being moot and
academic. Repeatedly stressed in our prior decisions is the principle
that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. By
actual cases, we mean existing conflicts appropriate or ripe for judicial
determination, not conjectural or anticipatory, for otherwise the
decision of the Court will amount to an advisory opinion. The power
of judicial inquiry does not extend to hypothetical questions because
any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.
Neither will the Court determine a moot question in a case in which
no practical relief can be granted. A case becomes moot when its
purpose has become stale. It is unnecessary to indulge in academic
discussion of a case presenting a moot question as a judgment
thereon cannot have any practical legal effect or, in the nature of
things, cannot be enforced.
In G.R. No. 170338, petitioner Garcillano implores from the Court, as
aforementioned, the issuance of an injunctive writ to prohibit the
61
respondent House Committees from playing the tape recordings and
from including the same in their committee report. He likewise prays
that the said tapes be stricken off the records of the House
proceedings. But the Court notes that the recordings were already
played in the House and heard by its members. There is also the
widely publicized fact that the committee reports on the “Hello Garci”
inquiry were completed and submitted to the House in plenary by the
respondent committees. Having been overtaken by these events, the
Garcillano petition has to be dismissed for being moot and academic.
After all, prohibition is a preventive remedy to restrain the doing of an
act about to be done, and not intended to provide a remedy for an act
already accomplished.
- III -
As to the petition in G.R. No. 179275, the Court grants the same. The
Senate cannot be allowed to continue with the conduct of the
questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that
“[t]he Senate or the House of Representatives, or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure.” The requisite of publication
of the rules is intended to satisfy the basic requirements of due
process. Publication is indeed imperative, for it will be the height of
injustice to punish or otherwise burden a citizen for the transgression
of a law or rule of which he had no notice whatsoever, not even a
constructive one. What constitutes publication is set forth in Article 2
of the Civil Code, which provides that “[l]aws shall take effect after 15
days following the completion of their publication either in the Official
Gazette, or in a newspaper of general circulation in the Philippines.”
The respondents in G.R. No. 179275 admit in their pleadings and even
on oral argument that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation had been published in newspapers of
general circulation only in 1995 and in 2006. With respect to the
present Senate of the 14th Congress, however, of which the term of
half of its members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they first opened
their session.
Recently, the Court had occasion to rule on this very same question.
In Neri v. Senate Committee on Accountability of Public Officers and
Investigations, we said:
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the “duly
published rules of procedure.” We quote the OSG’s explanation:
The phrase “duly published rules of procedure” requires the Senate of
every Congress to publish its rules of procedure governing inquiries in
aid of legislation because every Senate is distinct from the one before
it or after it. Since Senatorial elections are held every three (3) years
for one-half of the Senate’s membership, the composition of the
Senate also changes by the end of each term. Each Senate may thus
enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion,
reinforces this ruling with the following rationalization:
“The present Senate under the 1987 Constitution is no longer a
continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a term of
six years each. Thus, the term of twelve Senators expires every three
years, leaving less than a majority of Senators to continue into the
next Congress. The 1987 Constitution, like the 1935 Constitution,
requires a majority of Senators to ‘constitute a quorum to do business.’
Applying the same reasoning in Arnault v. Nazareno, the Senate under
the 1987 Constitution is not a continuing body because less than
majority of the Senators continue into the next Congress. The
62
consequence is that the Rules of Procedure must be republished by
the Senate after every expiry of the term of twelve Senators.”
The subject was explained with greater lucidity in our Resolution (On
the Motion for Reconsideration) in the same case, viz.:
“On the nature of the Senate as a ‘continuing body,’ this Court sees
fit to issue a clarification. Certainly, there is no debate that the Senate
as an institution is ‘continuing,’ as it is not dissolved as an entity with
each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each
Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when
it states:
RULE XLIV - UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be
taken up at the next session in the same status.
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the succeeding
Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings,
i.e. unpassed bills and even legislative investigations, of the Senate of
a particular Congress are considered terminated upon the expiration
of that Congress and it is merely optional on the Senate of the
succeeding Congress to take up such unfinished matters, not in the
same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the
Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be
bound by the acts and deliberations of the Senate of which they had
no part. If the Senate is a continuing body even with respect to the
conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a matter
of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of
the opposite nature of the conduct of its business is reflected in its
Rules. The Rules of the Senate (i.e. the Senate’s main rules of
procedure) states:
RULE LI - AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected
in the preceding elections shall begin their term of office, the President
may endorse the Rules to the appropriate committee for amendment
or revision.
The Rules may also be amended by means of a motion which should
be presented at least one day before its consideration, and the vote
of the majority of the Senators present in the session shall be required
for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption
and shall remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the
new composition of the Senate after an election and the possibility of
the amendment or revision of the Rules at the start of each session in
which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main
rules are intended to be valid from the date of their adoption until they
are amended or repealed. Such language is conspicuously absent from
the Rules. The Rules simply state “(t)hese Rules shall take effect seven
(7) days after publication in two (2) newspapers of general
circulation.” The latter does not explicitly provide for the continued
effectivity of such rules until they are amended or repealed. In view
of the difference in the language of the two sets of Senate rules, it
cannot be presumed that the Rules (on legislative inquiries) would
continue into the next Congress. The Senate of the next Congress may
63
easily adopt different rules for its legislative inquiries which come
within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring
that the inquiry be conducted in accordance with the duly published
rules of procedure is categorical. It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall
be effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative
inquiries to be effective even in the next Congress, it could have easily
adopted the same language it had used in its main rules regarding
effectivity.”
Respondents justify their non-observance of the constitutionally
mandated publication by arguing that the rules have never been
amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the
Senate’s internet web page.
The Court does not agree. The absence of any amendment to the
rules cannot justify the Senate’s defiance of the clear and
unambiguous language of Section 21, Article VI of the Constitution.
The organic law instructs, without more, that the Senate or its
committees may conduct inquiries in aid of legislation only in
accordance with duly published rules of procedure, and does not make
any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the
said rules prevails over any custom, practice or tradition followed by
the Senate.
Justice Carpio’s response to the same argument raised by the
respondents is illuminating:
“The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not sufficient
under the Tañada v. Tuvera ruling which requires publication either in
the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules “shall take effect seven (7)
days after publication in two (2) newspapers of general circulation,”
precluding any other form of publication. Publication in accordance
with Tañada is mandatory to comply with the due process requirement
because the Rules of Procedure put a person’s liberty at risk. A person
who violates the Rules of Procedure could be arrested and detained
by the Senate.”
The invocation by the respondents of the provisions of R.A. No. 8792,
otherwise known as the Electronic Commerce Act of 2000, to support
their claim of valid publication through the internet is all the more
incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written
document only for evidentiary purposes. In other words, the law
merely recognizes the admissibility in evidence (for their being the
original) of electronic data messages and/or electronic documents. It
does not make the internet a medium for publishing laws, rules and
regulations.
Given this discussion, the respondent Senate Committees, therefore,
could not, in violation of the Constitution, use its unpublished rules in
the legislative inquiry subject of these consolidated cases. The conduct
of inquiries in aid of legislation by the Senate has to be deferred until
it shall have caused the publication of the rules, because it can do so
only “in accordance with its duly published rules of procedure.”
Very recently, the Senate caused the publication of the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation in the October
31, 2008 issues of Manila Bulletin and Malaya. While we take judicial
notice of this fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions. Insofar as
the consolidated cases are concerned, the legislative investigation
subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear
contravention of the Constitution.
64
With the foregoing disquisition, the Court finds it unnecessary to
discuss the other issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the
petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be
issued enjoining the Senate of the Republic of the Philippines and/or
any of its committees from conducting any inquiry in aid of legislation
centered on the “Hello Garci” tapes.
SO ORDERED.
Quisumbing, Carpio, Tinga, Chico-Nazario, Velasco, Jr., Leonardo-De
Castro and Brion, JJ., concur.
Puno (C.J.), Please see Dissent.
Ynares-Santiago, J., I join the Dissenting Opinion of C.J. Puno.
Austria-Martinez, J., I join the C.J. in his Dissent.
Azcuna, J., I join the C.J. in his Dissent.
Corona, J., On Leave.
Carpio-Morales, J., I join the Dissent of the Chief Justice.
Reyes, J., See Concurring and Dissenting Opinion.
Petition in G.R. No. 170338 dismissed; while petition in G.R. No.
179275 granted.
Note. — Where the issue has become moot and academic, there is no
justiciable controversy, thereby rendering the resolution of the same
of no practical use or value. (Paloma vs. Court of Appeals, 415 SCRA
590 [2003])
——o0o——
RUSTAN ANG y PASCUA, petitioner, vs. THE HONORABLE
COURT OF APPEALS and IRISH SAGUD, respondents
G.R. No. 182835. April 20, 2010
Criminal Law; Violence against Women; Republic Act No. 9262;
Section 3(a) of R.A. 9262 provides that violence against women
includes an act or acts of a person against a woman with whom he
has or had a sexual or dating relationship that include any form of
harassment that causes substantial emotional or psychological distress
to a woman.—Section 3(a) of R.A. 9262 provides that violence against
women includes an act or acts of a person against a woman with
whom he has or had a sexual or dating relationship. Thus: “SEC. 3.
Definition of Terms.—As used in this Act, (a) “Violence against women
and their children” refers to any act or a series of acts committed by
any person against a woman who is his wife, former wife, or against
a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary deprivation of
liberty. x x x x Section 5 identifies the act or acts that constitute
violence against women and these include any form of harassment
that causes substantial emotional or psychological distress to a
woman. Thus: “SEC. 5. Acts of Violence Against Women and Their
Children. — The crime of violence against women and their children is
committed through any of the following acts: x x x x h. Engaging in
purposeful, knowing, or reckless conduct, personally or through
another, that alarms or causes substantial emotional or psychological
distress to the woman or her child. This shall include, but not be
limited to, the following acts: x x x x 5. Engaging in any form of
harassment or violence.”
Same; Same; Same; Elements of the Crime of Violence against
Women. — The elements of the crime of violence against women
through harassment are: 1. The offender has or had a sexual or dating
65
relationship with the offended woman; 2. The offender, by himself or
through another, commits an act or series of acts of harassment
against the woman; and 3. The harassment alarms or causes
substantial emotional or psychological distress to her.
Same; Same; Same; Words and Phrases; “Dating Relationship,”
Defined; A “dating relationship” includes a situation where the parties
are romantically involved over time and on a continuing basis during
the course of the relationship. — Section 3(e) provides that a “dating
relationship” includes a situation where the parties are romantically
involved over time and on a continuing basis during the course of the
relationship. Thus: (e) “Dating relationship” refers to a situation
wherein the parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a continuing
basis during the course of the relationship. A casual acquaintance or
ordinary socialization between two individuals in a business or social
context is not a dating relationship.
Same; Same; Same; Same; “Sexual Relations,” Defined; Sexual
relations refers to a single sexual act which may or may not result in
the bearing of a common child. — R.A. 9262 provides in Section 3 that
“violence against women x x x refers to any act or a series of acts
committed by any person against a woman x x x with whom the
person has or had a sexual or dating relationship.” Clearly, the law
itself distinguishes a sexual relationship from a dating relationship.
Indeed, Section 3(e) above defines “dating relationship” while Section
3(f) defines “sexual relations.” The latter “refers to a single sexual act
which may or may not result in the bearing of a common child.” The
dating relationship that the law contemplates can, therefore, exist
even without a sexual intercourse taking place between those
involved.
Same; Same; Same; Section 3(a) of R.A. 9262 punishes “any act or
series of acts” that constitutes violence against women—this means
that a single act of harassment, which translates into violence, would
be enough. — Section 3(a) of R.A. 9262 punishes “any act or series of
acts” that constitutes violence against women. This means that a
single act of harassment, which translates into violence, would be
enough. The object of the law is to protect women and children.
Punishing only violence that is repeatedly committed would license
isolated ones.
Evidence; Rules on Electronic Evidence (A.M. 01-7-01-SC); The Rules
on Electronic Evidence applies only to civil actions, quasi-judicial
proceedings, and administrative proceedings.—Rustan claims that the
obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an
electronic signature, as provided under Section 1, Rule 5 of the Rules
on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising
this objection to the admissibility of the obscene picture, Exhibit “A”,
for the first time before this Court. The objection is too late since he
should have objected to the admission of the picture on such ground
at the time it was offered in evidence. He should be deemed to have
already waived such ground for objection. Besides, the rules he cites
do not apply to the present criminal action. The Rules on Electronic
Evidence applies only to civil actions, quasi-judicial proceedings, and
administrative proceedings.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Padilla, Padolina, Padilla, Ignacio & Associates Law Offices for
petitioner.
The Solicitor General for respondent.
ABAD, J.:
This case concerns a claim of commission of the crime of violence
against women when a former boyfriend sent to the girl the picture of
a naked woman, not her, but with her face on it.
The Indictment
66
The public prosecutor charged petitioner-accused Rustan Ang
(Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of
violation of the Anti-Violence Against Women and Their Children Act
or Republic Act (R.A.) 9262 in an information that reads:
“That on or about June 5, 2005, in the Municipality of Maria Aurora,
Province of Aurora, Philippines and within the jurisdiction of this
Honorable Court, the said accused willfully, unlawfully and feloniously,
in a purposeful and reckless conduct, sent through the Short
Messaging Service (SMS) using his mobile phone, a pornographic
picture to one Irish Sagud, who was his former girlfriend, whereby the
face of the latter was attached to a completely naked body of another
woman making it to appear that it was said Irish Sagud who is
depicted in the said obscene and pornographic picture thereby causing
substantial emotional anguish, psychological distress and humiliation
to the said Irish Sagud.”
The Facts and the Case
The evidence for the prosecution shows that complainant Irish Sagud
(Irish) and accused Rustan were classmates at Wesleyan University in
Aurora Province. Rustan courted Irish and they became “on-and-off”
sweethearts towards the end of 2004. When Irish learned afterwards
that Rustan had taken a live-in partner (now his wife), whom he had
gotten pregnant, Irish broke up with him.
Before Rustan got married, however, he got in touch with Irish and
tried to convince her to elope with him, saying that he did not love the
woman he was about to marry. Irish rejected the proposal and told
Rustan to take on his responsibility to the other woman and their child.
Irish changed her cellphone number but Rustan somehow managed
to get hold of it and sent her text messages. Rustan used two
cellphone numbers for sending his messages, namely, 0920-4769301
and 0921-8084768. Irish replied to his text messages but it was to ask
him to leave her alone.
In the early morning of June 5, 2005, Irish received through
multimedia message service (MMS) a picture of a naked woman with
spread legs and with Irish’s face superimposed on the figure (Exhibit
“A”). The sender’s cellphone number, stated in the message, was
0921-8084768, one of the numbers that Rustan used. Irish surmised
that he copied the picture of her face from a shot he took when they
were in Baguio in 2003 (Exhibit “B”).
After she got the obscene picture, Irish got other text messages from
Rustan. He boasted that it would be easy for him to create similarly
scandalous pictures of her. And he threatened to spread the picture
he sent through the internet. One of the messages he sent to Irish,
written in text messaging shorthand, read: “Madali lang ikalat yun, my
chatrum ang tarlac rayt pwede ring send sa lahat ng chatter.”
Irish sought the help of the vice mayor of Maria Aurora who referred
her to the police. Under police supervision, Irish contacted Rustan
through the cellphone numbers he used in sending the picture and his
text messages. Irish asked Rustan to meet her at the Lorentess Resort
in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle.
After parking it, he walked towards Irish but the waiting police officers
intercepted and arrested him. They searched him and seized his Sony
Ericsson P900 cellphone and several SIM cards. While Rustan was
being questioned at the police station, he shouted at Irish: “Malandi
ka kasi!”
Joseph Gonzales, an instructor at the Aurora State College of
Technology, testified as an expert in information technology and
computer graphics. He said that it was very much possible for one to
lift the face of a woman from a picture and superimpose it on the body
of another woman in another picture. Pictures can be manipulated and
enhanced by computer to make it appear that the face and the body
belonged to just one person.
Gonzales testified that the picture in question (Exhibit “A”) had two
distinct irregularities: the face was not proportionate to the body and
the face had a lighter color. In his opinion, the picture was fake and
67
the face on it had been copied from the picture of Irish in Exhibit “B”.
Finally, Gonzales explained how this could be done, transferring a
picture from a computer to a cellphone like the Sony Ericsson P900
seized from Rustan.
For his part, Rustan admitted having courted Irish. He began visiting
her in Tarlac in October 2003 and their relation lasted until December
of that year. He claimed that after their relation ended, Irish wanted
reconciliation. They met in December 2004 but, after he told her that
his girlfriend at that time (later his wife) was already pregnant, Irish
walked out on him.
Sometime later, Rustan got a text message from Irish, asking him to
meet her at Lorentess Resort as she needed his help in selling her
cellphone. When he arrived at the place, two police officers
approached him, seized his cellphone and the contents of his pockets,
and brought him to the police station.
Rustan further claims that he also went to Lorentess because Irish
asked him to help her identify a prankster who was sending her
malicious text messages. Rustan got the sender’s number and,
pretending to be Irish, contacted the person. Rustan claims that he
got back obscene messages from the prankster, which he forwarded
to Irish from his cellphone. This explained, he said, why the obscene
messages appeared to have originated from his cellphone number.
Rustan claims that it was Irish herself who sent the obscene picture
(Exhibit “A”) to him. He presented six pictures of a woman whom he
identified as Irish (Exhibits “2” to “7”).
Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish
sent the six pictures. Michelle claims that she received the pictures
and hid the memory card (Exhibit “8”) that contained them because
she was jealous and angry. She did not want to see anything of Irish.
But, while the woman in the pictures posed in sexy clothing, in none
did she appear naked as in Exhibit “A”. Further, the face of the woman
in Exhibits “2”, “4”, “5” and “6” could not be seen. Irish denied that
she was the woman in those four pictures. As for Exhibits “3” and “7”,
the woman in the picture was fully dressed.
After trial, the RTC found Irish’s testimony completely credible, given
in an honest and spontaneous manner. The RTC observed that she
wept while recounting her experience, prompting the court to
comment: “Her tears were tangible expression of pain and anguish for
the acts of violence she suffered in the hands of her former
sweetheart. The crying of the victim during her testimony is evidence
of the credibility of her charges with the verity borne out of human
nature and experience.” Thus, in its Decision dated August 1, 2001,
the RTC found Rustan guilty of the violation of Section 5(h) of R.A.
9262.
On Rustan’s appeal to the Court of Appeals (CA), the latter rendered
a decision dated January 31, 2008, affirming the RTC decision. The
CA denied Rustan’s motion for reconsideration in a resolution dated
April 25, 2008. Thus, Rustan filed the present for review on certiorari.
The Issues Presented
The principal issue in this case is whether or not accused Rustan sent
Irish by cellphone message the picture with her face pasted on the
body of a nude woman, inflicting anguish, psychological distress, and
humiliation on her in violation of Section 5(h) of R.A. 9262.
The subordinate issues are:
1. Whether or not a “dating relationship” existed between Rustan
and Irish as this term is defined in R.A. 9262;
2. Whether or not a single act of harassment, like the sending of the
nude picture in this case, already constitutes a violation of Section
5(h) of R.A. 9262;
3. Whether or not the evidence used to convict Rustan was obtained
from him in violation of his constitutional rights; and
68
4. Whether or not the RTC properly admitted in evidence the
obscene picture presented in the case.
The Court’s Rulings
Section 3(a) of R.A. 9262 provides that violence against women
includes an act or acts of a person against a woman with whom he
has or had a sexual or dating relationship. Thus:
“SEC. 3. Definition of Terms.—As used in this Act,
(a) “Violence against women and their children” refers to any act or
a series of acts committed by any person against a woman who is his
wife, former wife, or against a woman with whom the person has or
had a sexual or dating relationship, or with whom he has a common
child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty.
x x x x”
Section 5 identifies the act or acts that constitute violence against
women and these include any form of harassment that causes
substantial emotional or psychological distress to a woman. Thus:
“SEC. 5. Acts of Violence Against Women and Their Children.—The
crime of violence against women and their children is committed
through any of the following acts:
xxxx
h. Engaging in purposeful, knowing, or reckless conduct, personally
or through another, that alarms or causes substantial emotional or
psychological distress to the woman or her child. This shall include,
but not be limited to, the following acts:
xxxx
5. Engaging in any form of harassment or violence”;
The above provisions, taken together, indicate that the elements of
the crime of violence against women through harassment are:
1. The offender has or had a sexual or dating relationship with the
offended woman;
2. The offender, by himself or through another, commits an act or
series of acts of harassment against the woman; and
3. The harassment alarms or causes substantial emotional or
psychological distress to her.
One. The parties to this case agree that the prosecution needed to
prove that accused Rustan had a “dating relationship” with Irish.
Section 3(e) provides that a “dating relationship” includes a situation
where the parties are romantically involved over time and on a
continuing basis during the course of the relationship. Thus:
“(e) “Dating relationship” refers to a situation wherein the parties live
as husband and wife without the benefit of marriage or are
romantically involved over time and on a continuing basis during the
course of the relationship. A casual acquaintance or ordinary
socialization between two individuals in a business or social context is
not a dating relationship.” (Underscoring supplied.)
Here, Rustan claims that, being “romantically involved,” implies that
the offender and the offended woman have or had sexual relations.
According to him, “romance” implies a sexual act. He cites Webster’s
Comprehensive Dictionary Encyclopedia Edition which provides a
colloquial or informal meaning to the word “romance” used as a verb,
i.e., “to make love; to make love to” as in “He romanced her.”
But it seems clear that the law did not use in its provisions the
colloquial verb “romance” that implies a sexual act. It did not say that
the offender must have “romanced” the offended woman. Rather, it
used the noun “romance” to describe a couple’s relationship, i.e., “a
love affair.”
69
R.A. 9262 provides in Section 3 that “violence against women x x x
refers to any act or a series of acts committed by any person against
a woman x x x with whom the person has or had a sexual or dating
relationship.” Clearly, the law itself distinguishes a sexual relationship
from a dating relationship. Indeed, Section 3(e) above defines “dating
relationship” while Section 3(f) defines “sexual relations.” The latter
“refers to a single sexual act which may or may not result in the
bearing of a common child.” The dating relationship that the law
contemplates can, therefore, exist even without a sexual intercourse
taking place between those involved.
Rustan also claims that since the relationship between Irish and him
was of the “on-and-off” variety (away-bati), their romance cannot be
regarded as having developed “over time and on a continuing basis.”
But the two of them were romantically involved, as Rustan himself
admits, from October to December of 2003. That would be time
enough for nurturing a relationship of mutual trust and love.
An “away-bati” or a fight-and-kiss thing between two lovers is a
common occurrence. Their taking place does not mean that the
romantic relation between the two should be deemed broken up
during periods of misunderstanding. Explaining what “away-bati”
meant, Irish explained that at times, when she could not reply to
Rustan’s messages, he would get angry at her. That was all. Indeed,
she characterized their three-month romantic relation as continuous.
Two. Rustan argues that the one act of sending an offensive picture
should not be considered a form of harassment. He claims that such
would unduly ruin him personally and set a very dangerous precedent.
But Section 3(a) of R.A. 9262 punishes “any act or series of acts” that
constitutes violence against women. This means that a single act of
harassment, which translates into violence, would be enough. The
object of the law is to protect women and children. Punishing only
violence that is repeatedly committed would license isolated ones.
Rustan alleges that today’s women, like Irish, are so used to obscene
communications that her getting one could not possibly have
produced alarm in her or caused her substantial emotional or
psychological distress. He claims having previously exchanged
obscene pictures with Irish such that she was already desensitized by
them.
But, firstly, the RTC which saw and heard Rustan and his wife give
their testimonies was not impressed with their claim that it was Irish
who sent the obscene pictures of herself (Exhibits “2-7”). It is doubtful
if the woman in the picture was Irish since her face did not clearly
show on them.
Michelle, Rustan’s wife, claimed that she deleted several other pictures
that Irish sent, except Exhibits “2” to “7”. But her testimony did not
make sense. She said that she did not know that Exhibits “2” to “7”
had remained saved after she deleted the pictures. Later, however,
she said that she did not have time to delete them. And, if she thought
that she had deleted all the pictures from the memory card, then she
had no reason at all to keep and hide such memory card. There would
have been nothing to hide. Finally, if she knew that some pictures
remained in the card, there was no reason for her to keep it for several
years, given that as she said she was too jealous to want to see
anything connected to Irish. Thus, the RTC was correct in not giving
credence to her testimony.
Secondly, the Court cannot measure the trauma that Irish experienced
based on Rustan’s low regard for the alleged moral sensibilities of
today’s youth. What is obscene and injurious to an offended woman
can of course only be determined based on the circumstances of each
case. Here, the naked woman on the picture, her legs spread open
and bearing Irish’s head and face, was clearly an obscene picture and,
to Irish a revolting and offensive one. Surely, any woman like Irish,
who is not in the pornography trade, would be scandalized and pained
if she sees herself in such a picture. What makes it further terrifying
is that, as Irish testified, Rustan sent the picture with a threat to post
it in the internet for all to see. That must have given her a nightmare.
70
Three. Rustan argues that, since he was arrested and certain items
were seized from him without any warrant, the evidence presented
against him should be deemed inadmissible. But the fact is that the
prosecution did not present in evidence either the cellphone or the
SIM cards that the police officers seized from him at the time of his
arrest. The prosecution did not need such items to prove its case.
Exhibit “C” for the prosecution was but a photograph depicting the
Sony Ericsson P900 cellphone that was used, which cellphone Rustan
admitted owning during the pre-trial conference.
Actually, though, the bulk of the evidence against him consisted in
Irish’s testimony that she received the obscene picture and malicious
text messages that the sender’s cellphone numbers belonged to
Rustan with whom she had been previously in communication. Indeed,
to prove that the cellphone numbers belonged to Rustan, Irish and
the police used such numbers to summon him to come to Lorentess
Resort and he did. Consequently, the prosecution did not have to
present the confiscated cellphone and SIM cards to prove that Rustan
sent those messages.
Moreover, Rustan admitted having sent the malicious text messages
to Irish. His defense was that he himself received those messages
from an unidentified person who was harassing Irish and he merely
forwarded the same to her, using his cellphone. But Rustan never
presented the cellphone number of the unidentified person who sent
the messages to him to authenticate the same. The RTC did not give
credence to such version and neither will this Court. Besides, it was
most unlikely for Irish to pin the things on Rustan if he had merely
tried to help her identify the sender.
Four. Rustan claims that the obscene picture sent to Irish through a
text message constitutes an electronic document. Thus, it should be
authenticated by means of an electronic signature, as provided under
Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-
SC).
But, firstly, Rustan is raising this objection to the admissibility of the
obscene picture, Exhibit “A”, for the first time before this Court. The
objection is too late since he should have objected to the admission
of the picture on such ground at the time it was offered in evidence.
He should be deemed to have already waived such ground for
objection.
Besides, the rules he cites do not apply to the present criminal action.
The Rules on Electronic Evidence applies only to civil actions, quasi-
judicial proceedings, and administrative proceedings.
In conclusion, this Court finds that the prosecution has proved each
and every element of the crime charged beyond reasonable doubt.
WHEREFORE, the Court DENIES the petition and AFFIRMS the
decision of the Court of Appeals in CA-G.R. CR 30567 dated January
31, 2008 and its resolution dated April 25, 2008.
SO ORDERED.
Carpio (Chairperson), Velasco, Jr.,** Brion and Perez, JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.—A facsimile transmission cannot be considered as electronic
evidence—it is not the functional equivalent of an original under the
Best Evidence Rule and is not admissible as electronic evidence. (MCC
Industrial Sales Corporation vs. Ssangyong Corporation, 536 SCRA 408
[2007])
Since a facsimile transmission is not an “electronic data message” or
an “electronic document,” and cannot be considered as electronic
evidence by the Court, with greater reason is a photocopy of such a
fax transmission not electronic evidence. (MCC Industrial Sales
Corporation vs. Ssangyong Corporation, 536 SCRA 408 [2008]) Ang
vs. Court of Appeals, 618 SCRA 592, G.R. No. 182835 April 20, 2010
——o0o——
71
BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER
AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents

G.R. No. 127685. July 23, 1998

Constitutional Law; Administrative Law; Administrative Order No. 308;

As a Senator, petitioner is possessed of the requisite standing to bring
suit raising the issue that the issuance of Administrative Order No. 308
is a usurpation of legislative power. — As is usual in constitutional
litigation, respondents raise the threshold issues relating to the
standing to sue of the petitioner and the justiciability of the case at
bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308
have yet to be promulgated. These submissions do not deserve our
sympathetic ear. Petitioner Ople is a distinguished member of our
Senate. As a Senator, petitioner is possessed of the requisite standing
to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power. As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also
impugn the legality of the misalignment of public funds and the misuse
of GSIS funds to implement A.O. No. 308.

Same; Same; Same; Administrative power is concerned with the work

of applying policies and enforcing orders as determined by proper
governmental organs. — Administrative power is concerned with the
work of applying policies and enforcing orders as determined by
proper governmental organs. It enables the President to fix a uniform
standard of administrative efficiency and check the official conduct of
his agents. To this end, he can issue administrative orders, rules and
regulations.

Same; Same; Same; Administrative Order No. 308 involves a subject

that is not appropriate to be covered by an administrative order.—

72
Prescinding from these precepts, we hold that A.O. No. 308 involves
a subject that is not appropriate to be covered by an administrative
order. x x x An administrative order is an ordinance issued by the
President which relates to specific aspects in the administrative
operation of government. It must be in harmony with the law and
should be for the sole purpose of implementing the law and carrying
out the legislative policy.
Same; Same; Same; Argument that Administrative Order No. 308
implements the legislative policy of the Administrative Code of 1987
rejected. — We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a
general law and “incorporates in a unified document the major
structural, functional and procedural principles of governance” and
“embodies changes in administrative structures and procedures
designed to serve the people.”
Same; Same; Same; Administrative Order No. 308 cannot pass
constitutional muster as an administrative legislation because facially
it violates the right to privacy. — Assuming, arguendo, that A.O. No.
308 need not be the subject of a law, still it cannot pass constitutional
muster as an administrative legislation because facially it violates the
right to privacy. The essence of privacy is the “right to be let alone.”
Same; Same; Same; Any law or order that invades individual privacy
will be subjected by the Court to strict scrutiny. — In no uncertain
terms, we also underscore that the right to privacy does not bar all
incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service
and the common good. It merely requires that the law be narrowly
focused and a compelling interest justify such intrusions. Intrusions
into the right must be accompanied by proper safeguards and well-
defined standards to prevent unconstitutional invasions. We reiterate
that any law or order that invades individual privacy will be subjected
by this Court to strict scrutiny.
KAPUNAN, J., Dissenting Opinion
Constitutional Law; Administrative Law; Administrative Order No. 308;
The new identification system would tremendously improve and uplift
public service in our country to the benefit of Filipino citizens and
resident aliens. — The new identification system would tremendously
improve and uplift public service in our country to the benefit of
Filipino citizens and resident aliens. It would promote, facilitate and
speed up legitimate transactions with government offices as well as
with private and business entities. Experience tells us of the constant
delays and inconveniences the public has to suffer in availing of basic
public services and social security benefits because of inefficient and
not too reliable means of identification of the beneficiaries.
Same; Same; Same; The Administrative Code of 1987 has
unequivocally vested the President with quasi-legislative powers in the
form of executive orders, administrative orders, proclamations,
memorandum orders and circulars and general or special orders. —
The Administrative Code of 1987 has unequivocally vested the
President with quasi-legislative powers in the form of executive orders,
administrative orders, proclamations, memorandum orders and
circulars and general or special orders. An administrative order, like
the one under which the new identification system is embodied, has
its peculiar meaning under the 1987 Administrative Code: SEC. 3.
Administrative Orders. — Acts of the President which relate to
particular aspects of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative
orders.
MENDOZA, J., Separate Opinion
Constitutional Law; Administrative Law; Administrative Order No. 308;
Petitioner Blas F. Ople has no cause of action and, therefore, no
standing to bring the action.—Given the fact that no right of privacy
is involved in this case and that any objection to the Identification
Reference System on the ground that it violates freedom of thought
is premature, speculative, or conjectural pending the issuance of the
implementing rules, it is clear that petitioner Blas F. Ople has no cause
of action and, therefore, no standing to bring this action. Indeed,
73
although he assails A.O. No. 308 on the ground that it violates the
right of privacy, he claims no personal injury suffered as a result of
the Order in question. Instead, he says he is bringing this action as
taxpayer, Senator, and member of the Government Service Insurance
System.
PETITION to review a decision of the Executive Secretary and the
Members of the Inter-Agency Coordinating Committee.
The facts are stated in the opinion of the Court.
Manuel Joseph R. Bretana III for petitioner.
The Solicitor General for respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator
Blas F. Ople to prevent the shrinking of the right to privacy, which the
revered Mr. Justice Brandeis considered as “the most comprehensive
of rights and the right most valued by civilized men.” Petitioner Ople
prays that we invalidate Administrative Order No. 308 entitled
“Adoption of a National Computerized Identification Reference
System” on two important constitutional grounds, viz.: one, it is a
usurpation of the power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry’s protected zone of privacy. We
grant the petition for the rights sought to be vindicated by the
petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December
12, 1996 and reads as follows:
“ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign
residents with the facility to conveniently transact business with basic
service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly and
efficiently identify persons seeking basic services on social security
and reduce, if not totally eradicate, fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among the various
basic services and social security providing agencies and other
government instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of
the Philippines, by virtue of the powers vested in me by law, do hereby
direct the following:
SECTION 1. Establishment of a National Computerized Identification
Reference System. A decentralized Identification Reference System
among the key basic services and social security providers is hereby
established.
SEC. 2. Inter-Agency Coordinating Committee. An InterAgency
Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
74
Managing Director, National Computer Center
SEC. 3. Secretariat. The National Computer Center (NCC) is hereby
designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. The Population Reference Number
(PRN) generated by the NSO shall serve as the common reference
number to establish a linkage among concerned agencies. The IACC
Secretariat shall coordinate with the different Social Security and
Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective
systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office
of the Press Secretary, in coordination with the National Statistics
Office, the GSIS and SSS as lead agencies and other concerned
agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security Identification
Reference.
SEC. 6. Funding. The funds necessary for the implementation of the
system shall be sourced from the respective budgets of the concerned
agencies.
SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the
IACC, on the status of implementation of this undertaking.
SEC. 8. Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the year of
Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS”
A.O. No. 308 was published in four newspapers of general circulation
on January 22, 1997 and January 23, 1997. On January 24, 1997,
petitioner filed the instant petition against respondents, then
Executive Secretary Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency Coordinating
Committee, are charged with the implementation of A.O. No. 308. On
April 8, 1997, we issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
“A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR
THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION.”
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;
75
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL’S INTEREST IN tighten the rule on standing is not a commendable stance as its result
PRIVACY. would be to throttle an important constitutional principle and a
fundamental right.
We now resolve.
II
I
We now come to the core issues. Petitioner claims that A.O. No. 308
As is usual in constitutional litigation, respondents raise the threshold
is not a mere administrative order but a law and hence, beyond the
issues relating to the standing to sue of the petitioner and the
power of the President to issue. He alleges that A.O. No. 308
justiciability of the case at bar. More specifically, respondents aver
establishes a system of identification that is all-encompassing in
that petitioner has no legal interest to uphold and that the
scope, affects the life and liberty of every Filipino citizen and foreign
implementing rules of A.O. No. 308 have yet to be promulgated.
resident, and more particularly, violates their right to privacy.
These submissions do not deserve our sympathetic ear. Petitioner Petitioner’s sedulous concern for the Executive not to trespass on the
Ople is a distinguished member of our Senate. As a Senator, petitioner
law-making domain of Congress is understandable. The blurring of the
is possessed of the requisite standing to bring suit raising the issue
demarcation line between the power of the Legislature to make laws
that the issuance of A.O. No. 308 is a usurpation of legislative power.
and the power of the Executive to execute laws will disturb their
As taxpayer and member of the Government Service Insurance
delicate balance of power and cannot be allowed. Hence, the exercise
System (GSIS), petitioner can also impugn the legality of the
by one branch of government of power belonging to another will be
misalignment of public funds and the misuse of GSIS funds to
given a stricter scrutiny by this Court.
implement A.O. No. 308.
The line that delineates Legislative and Executive power is not
The ripeness for adjudication of the petition at bar is not affected by
indistinct. Legislative power is “the authority, under the Constitution,
the fact that the implementing rules of A.O. No. 308 have yet to be
to make laws, and to alter and repeal them.” The Constitution, as the
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and
will of the people in their original, sovereign and unlimited capacity,
as infirmed on its face. His action is not premature for the rules yet to
has vested this power in the Congress of the Philippines. The grant of
be promulgated cannot cure its fatal defects. Moreover, the
legislative power to Congress is broad, general and comprehensive.
respondents themselves have started the implementation of A.O. No.
The legislative body possesses plenary power for all purposes of civil
308 without waiting for the rules. As early as January 19, 1997,
government. Any power, deemed to be legislative by usage and
respondent Social Security System (SSS) caused the publication of a tradition, is necessarily possessed by Congress, unless the
notice to bid for the manufacture of the National Identification (ID)
Constitution has lodged it elsewhere. In fine, except as limited by the
card. Respondent Executive Secretary Torres has publicly announced Constitution, either expressly or impliedly, legislative power embraces
that representatives from the GSIS and the SSS have completed the
all subjects and extends to matters of general concern or common
guidelines for the national identification system. All signals from the
interest.
respondents show their unswerving will to implement A.O. No. 308
and we need not wait for the formality of the rules to pass judgment While Congress is vested with the power to enact laws, the President
on its constitutionality. In this light, the dissenters insistence that we executes the laws. The executive power is vested in the President. It

76
is generally defined as the power to enforce and administer the laws.
It is the power of carrying the laws into practical operation and
enforcing their due observance.
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus
and offices. This means that he has the authority to assume directly
the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of
control, the President also has the duty of supervising the enforcement
of laws for the maintenance of general peace and public order. Thus,
he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively.
Administrative power is concerned with the work of applying policies
and enforcing orders as determined by proper governmental organs.
It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. To this end, he
can issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves
a subject that is not appropriate to be covered by an administrative
order. An administrative order is:
“Sec. 3. Administrative Orders.—Acts of the President which relate to
particular aspects of governmental operation in pursuance of his
duties as administrative head shall be promulgated in administrative
orders.”
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the
legislative policy. We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987.
The Code is a general law and “incorporates in a unified document the
major structural, functional and procedural principles of governance”
and “embodies changes in administrative structures and procedures
designed to serve the people.” The Code is divided into seven (7)
Books: Book I deals with Sovereignty and General Administration,
Book II with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book IV on the
Executive Branch, Book V on the Constitutional Commissions, Book VI
on National Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative and
judicial branches of government, the organization and administration
of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government
budget, as well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e., internal
organization, personnel and recruitment, supervision and discipline,
and the effects of the functions performed by administrative officials
on private individuals or parties outside government.
It cannot be simplistically argued that A.O. No. 308 merely implements
the Administrative Code of 1987. It establishes for the first time a
National Computerized Identification Reference System. Such a
System requires a delicate adjustment of various contending state
policies—the primacy of national security, the extent of privacy
interest against dossier gathering by government, the choice of
policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that
the A.O. No. 308 involves the all-important freedom of thought. As
said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that
separates the administrative power of the President to make rules and
the legislative power of Congress, it ought to be evident that it deals
with a subject that should be covered by law.
77
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not
a law because it confers no right, imposes no duty, affords no
protection, and creates no office. Under A.O. No. 308, a citizen cannot
transact business with government agencies delivering basic services
to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing
with government. It is thus clear as daylight that without the ID, a
citizen will have difficulty exercising his rights and enjoying his
privileges. Given this reality, the contention that A.O. No. 308 gives
no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the
limits of administrative legislation and consequently erodes the
plenary power of Congress to make laws. This is contrary to the
established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: “x x x Many regulations however,
bear directly on the public. It is here that administrative legislation
must be restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that
Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws.”
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a
law, still it cannot pass constitutional muster as an administrative
legislation because facially it violates the right to privacy. The essence
of privacy is the “right to be let alone.” In the 1965 case of Griswold
v. Connecticut, the United States Supreme Court gave more substance
to the right of privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which can be found
within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments, viz.:
“Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and
substance x x x. Various guarantees create zones of privacy. The right
of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers ‘in any house’ in time of peace without the
consent of the owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ‘right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.’ The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The
Ninth Amendment provides: ‘The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.’”
In the 1968 case of Morfe v. Mutuc, we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr. Justice,
later Chief Justice, Enrique Fernando, we held:
“x x x
The Griswold case invalidated a Connecticut statute which made the
use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed “a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees.” It has wider implications though. The constitutional right
to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: ‘The concept of limited government
has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed
one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a
78
system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector—
protection, in other words, of the dignity and integrity of the
individual—has become increasingly important as modern society has
developed. All the forces of a technological age—industrialization,
urbanization, and organization—operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society.’”
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. It is expressly recognized in Section 3(1) of the Bill of
Rights:
“Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.”
Other facets of the right to privacy are protected in various provisions
of the Bill of Rights, viz.:
“Sec. 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
persons or things to be seized.
x x x.
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
x x x.
Sec. 8. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.”
Zones of privacy are likewise recognized and protected in our laws.
The Civil Code provides that “[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons” and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, and recognizes
the privacy of letters and other private communications. The Revised
Penal Code makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-
Wiretapping Law, the Secrecy of Bank Deposits Act and the
Intellectual Property Code. The Rules of Court on privileged
communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence,
it is the burden of government to show that A.O. No. 308 is justified
by some compelling state interest and that it is narrowly drawn. A.O.
No. 308 is predicated on two considerations: (1) the need to provide
our citizens and foreigners with the facility to conveniently transact
business with basic service and social security providers and other
government instrumentalities and (2) the need to reduce, if not totally
79
eradicate, fraudulent transactions and misrepresentations by persons
seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what
is not arguable is the broadness, the vagueness, the overbreadth of
A.O. No. 308 which if implemented will put our people’s right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a “common reference number
to establish a linkage among concerned agencies” through the use of
“Biometrics Technology” and “computer application designs.”
Biometry or biometrics is “the science of the application of statistical
methods to biological facts; a mathematical analysis of biological
data.” The term “biometrics” has now evolved into a broad category
of technologies which provide precise confirmation of an individual’s
identity through the use of the individual’s own physiological and
behavioral characteristics. A physiological characteristic is a relatively
stable physical characteristic such as a fingerprint, retinal scan, hand
geometry or facial features. A behavioral characteristic is influenced
by the individual’s personality and includes voice print, signature and
keystroke. Most biometric identification systems use a card or personal
identification number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or
entering the PIN is the legitimate owner of the card or PIN.
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into
an individual number which is called a biocrypt. The biocrypt is stored
in computer data banks and becomes a means of identifying an
individual using a service. This technology requires one’s fingertip to
be scanned every time service or access is provided. Another method
is the retinal scan. Retinal scan technology employs optical technology
to map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a fingerprint. Another biometric
method is known as the “artificial nose.” This device chemically
analyzes the unique combination of substances excreted from the skin
of people. The latest on the list of biometric achievements is the
thermogram. Scientists have found that by taking pictures of a face
using infrared cameras, a unique heat distribution pattern is seen. The
different densities of bone, skin, fat and blood vessels all contribute to
the individual’s personal “heat signature.”
In the last few decades, technology has progressed at a galloping rate.
Some science fictions are now science facts. Today, biometrics is no
longer limited to the use of fingerprint to identify an individual. It is a
new science that uses various technologies in encoding any and all
biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be used
to identify people who will seek its coverage. Considering the banquet
of options available to the implementors of A.O. No. 308, the fear that
it threatens the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will
show that it does not state whether encoding of data is limited to
biological information alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the Identification
Reference System will contribute to the “generation of population data
for development planning.” This is an admission that the PRN will not
be used solely for identification but for the generation of other data
with remote relation to the avowed purposes of A.O. No. 308. Clearly,
the indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No.
308 cannot be underplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and security.
His transactions with the government agency will necessarily be
recorded—whether it be in the computer or in the documentary file of
the agency. The individual’s file may include his transactions for loan
availments, income tax returns, statement of assets and liabilities,
80
reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a huge
and formidable information base through the electronic linkage of the
files. The data may be gathered for gainful and useful government
purposes; but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a temptation that
may be too great for some of our authorities to resist.
We can even grant, arguendo, that the computer data file will be
limited to the name, address and other basic personal information
about the individual. Even that hospitable assumption will not save
A.O. No. 308 from constitutional infirmity for again said order does not
tell us in clear and categorical terms how these information gathered
shall be handled. It does not provide who shall control and access the
data, under what circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty the integrity of
the information. Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no
controls to guard against leakage of information. When the access
code of the control programs of the particular computer system is
broken, an intruder, without fear of sanction or penalty, can make use
of the data for whatever purpose, or worse, manipulate the data
stored within the system.
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only
be processed for unequivocally specified purposes. The lack of proper
safeguards in this regard of A.O. No. 308 may interfere with the
individual’s liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to
access confidential information and circumvent the right against self-
incrimination; it may pave the way for “fishing expeditions” by
government authorities and evade the right against unreasonable
searches and seizures. The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or
placed on his ID, much less verify the correctness of the data encoded.
They threaten the very abuses that the Bill of Rights seeks to prevent.
The ability of a sophisticated data center to generate a comprehensive
cradle-to-grave dossier on an individual and transmit it over a national
network is one of the most graphic threats of the computer revolution.
The computer is capable of producing a comprehensive dossier on
individuals out of information given at different times and for varied
purposes. It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored data is simple. When
information of a privileged character finds its way into the computer,
it can be extracted together with other data on the subject. Once
extracted, the information is putty in the hands of any person. The
end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the
dissenting opinions would dismiss its danger to the right to privacy as
speculative and hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role as the ultimate
guardian of the people’s liberty if it would not immediately smother
the sparks that endanger their rights but would rather wait for the fire
that could consume them.
We reject the argument of the Solicitor General that an individual has
a reasonable expectation of privacy with regard to the National ID and
the use of biometrics technology as it stands on quicksand. The
reasonableness of a person’s expectation of privacy depends on a two-
part test: (1) whether by his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this expectation is one that
society recognizes as reasonable. The factual circumstances of the
case determine the reasonableness of the expectation. However,
other factors, such as customs, physical surroundings and practices of
a particular activity, may serve to create or diminish this expectation.
The use of biometrics and computer technology in A.O. No. 308 does
not assure the individual of a reasonable expectation of privacy. As
technology advances, the level of reasonably expected privacy
decreases. The measure of protection granted by the reasonable
81
expectation diminishes as relevant technology becomes more widely
accepted. The security of the computer data file depends not only on
the physical inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O. No. 308 is so
widely drawn that a minimum standard for a reasonable expectation
of privacy, regardless of technology used, cannot be inferred from its
provisions.
The rules and regulations to be drawn by the IACC cannot remedy this
fatal defect. Rules and regulations merely implement the policy of the
law or order. On its face, A.O. No. 308 gives the IACC virtually
unfettered discretion to determine the metes and bounds of the ID
System.
Nor do our present laws provide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act No. 591 penalizes the
disclosure by any person of data furnished by the individual to the
NSO with imprisonment and fine. Republic Act No. 1161 prohibits
public disclosure of SSS employment records and reports. These laws,
however, apply to records and data with the NSO and the SSS. It is
not clear whether they may be applied to data with the other
government agencies forming part of the National ID System. The
need to clarify the penal aspect of A.O. No. 308 is another reason why
its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308’s
abridgment of the right of privacy by using the rational relationship
test. He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of services, and
(3) generate population data for development planning. He concludes
that these purposes justify the incursions into the right to privacy for
the means are rationally related to the end.
We are not impressed by the argument. In Morfe v. Mutuc, we upheld
the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices
Act, as a valid police power measure. We declared that the law, in
compelling a public officer to make an annual report disclosing his
assets and liabilities, his sources of income and expenses, did not
infringe on the individual’s right to privacy. The law was enacted to
promote morality in public administration by curtailing and minimizing
the opportunities for official corruption and maintaining a standard of
honesty in the public service.
The same circumstances do not obtain in the case at bar. For one,
R.A. 3019 is a statute, not an administrative order. Secondly, R.A.
3019 itself is sufficiently detailed. The law is clear on what practices
were prohibited and penalized, and it was narrowly drawn to avoid
abuses. In the case at bar, A.O. No. 308 may have been impelled by
a worthy purpose, but, it cannot pass constitutional scrutiny for it is
not narrowly drawn. And we now hold that when the integrity of a
fundamental right is at stake, this Court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not
do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right can be diminished,
if not defeated, even when the government does not act irrationally.
They must satisfactorily show the presence of compelling state
interests and that the law, rule, or regulation is narrowly drawn to
preclude abuses. This approach is demanded by the 1987 Constitution
whose entire matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least we can do is to
lean towards the stance that will not put in danger the rights protected
by the Constitution.
The case of Whalen v. Roe cited by the Solicitor General is also off-
line. In Whalen, the United States Supreme Court was presented with
the question of whether the State of New York could keep a
centralized computer record of the names and addresses of all persons
who obtained certain drugs pursuant to a doctor’s prescription. The
New York State Controlled Substances Act of 1972 required physicians
to identify patients obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but with a potential
82
for abuse, so that the names and addresses of the patients can be
recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that
some people might decline necessary medication because of their fear
that the computerized data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize them as drug
addicts. The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the individual’s interest
in avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual’s interest in avoiding
disclosure of personal matters is an aspect of the right to privacy, the
statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommendation
by a specially appointed commission which held extensive hearings on
the matter. Moreover, the statute was narrowly drawn and contained
numerous safeguards against indiscriminate disclosure. The statute
laid down the procedure and requirements for the gathering, storage
and retrieval of the information. It enumerated who were authorized
to access the data. It also prohibited public disclosure of the data by
imposing penalties for its violation. In view of these safeguards, the
infringement of the patients’ right to privacy was justified by a valid
exercise of police power. As we discussed above, A.O. No. 308 lacks
these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not per se against the use of computers to accumulate, store,
process, retrieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information systems in
different countries make use of the computer to facilitate important
social objectives, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance
programs, improvement of telecommunications and streamlining of
financial activities. Used wisely, data stored in the computer could help
good administration by making accurate and comprehensive
information for those who have to frame policy and make key
decisions. The benefits of the computer has revolutionized information
technology. It developed the internet, introduced the concept of
cyberspace and the information superhighway where the individual,
armed only with his personal computer, may surf and search all kinds
and classes of information from libraries and databases connected to
the net.
In no uncertain terms, we also underscore that the right to privacy
does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that
the law be narrowly focused and a compelling interest justify such
intrusions. Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit:
“The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal
life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this
private sector—protection, in other words, of the dignity and integrity
of the individual—has become increasingly important as modern
society has developed. All the forces of a technological age—
industrialization, urbanization, and organization—operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms,
83
the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society.”
IV
The right to privacy is one of the most threatened rights of man living
in a mass society. The threats emanate from various sources—
governments, journalists, employers, social scientists, etc. In the case
at bar, the threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it
will facilitate delivery of basic services. Given the record-keeping
power of the computer, only the indifferent will fail to perceive the
danger that A.O. No. 308 gives the government the power to compile
a devastating dossier against unsuspecting citizens. It is timely to take
note of the well-worded warning of Kalvin, Jr., “the disturbing result
could be that everyone will live burdened by an unerasable record of
his past and his limitations. In a way, the threat is that because of its
recordkeeping, the society will have lost its benign capacity to forget.”
Oblivious to this counsel, the dissents still say we should not be too
quick in labelling the right to privacy as a fundamental right. We close
with the statement that the right to privacy was not engraved in our
Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order
No. 308 entitled “Adoption of a National Computerized Identification
Reference System” declared null and void for being unconstitutional.
SO ORDERED.
Petition granted, Administrative Order No. 308 declared null and void.
——o0o——
MARYNETTE R. GAMBOA, petitioner, vs. P/SSUPT. MARLOU
C. CHAN, IN HIS CAPACITY AS THE PNP-PROVINCIAL
DIRECTOR OF ILOCOS NORTE, and P/SUPT. WILLIAM O.
FANG, IN HIS CAPACITY AS CHIEF, INTELLIGENCE
DIVISION, PNP PROVINCIAL OFFICE, ILOCOS NORTE,
respondents
G.R. No. 193636. July 24, 2012
Constitutional Law; Right to Privacy; Liberty in the constitutional sense
must mean more than freedom from unlawful governmental restraint;
it must include privacy as well, if it is to be a repository of freedom.
The right to be let alone is indeed the beginning of all freedom. — The
right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc, 22
SCRA 424 (1968), thus enunciated: The due process question
touching on an alleged deprivation of liberty as thus resolved goes a
long way in disposing of the objections raised by plaintiff that the
provision on the periodical submission of a sworn statement of assets
and liabilities is violative of the constitutional right to privacy. There is
much to be said for this view of Justice Douglas: “Liberty in the
constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is indeed the beginning
of all freedom.” As a matter of fact, this right to be let alone is, to
quote from Mr. Justice Brandeis “the most comprehensive of rights
and the right most valued by civilized men.” The concept of liberty
would be emasculated if it does not likewise compel respect for his
personality as a unique individual whose claim to privacy and
interference demands respect.
Same; Same; The right to privacy is considered a fundamental right
that must be protected from intrusion or constraint. — Clearly, the
right to privacy is considered a fundamental right that must be
protected from intrusion or constraint. However, in Standard
Chartered Bank v. Senate Committee on Banks, 541 SCRA 456 (2007),
this Court underscored that the right to privacy is not absolute, viz.:
84
With respect to the right of privacy which petitioners claim respondent
has violated, suffice it to state that privacy is not an absolute right.
While it is true that Section 21, Article VI of the Constitution,
guarantees respect for the rights of persons affected by the legislative
investigation, not every invocation of the right to privacy should be
allowed to thwart a legitimate congressional inquiry. In Sabio v.
Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the
right to privacy of ordinary financial transactions. In that case, we
declared that the right to privacy is not absolute where there is an
overriding compelling state interest. Employing the rational basis
relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individual’s right to privacy as the requirement to
disclosure information is for a valid purpose, in this case, to ensure
that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign
securities. Suffice it to state that this purpose constitutes a reason
compelling enough to proceed with the assailed legislative
investigation.
Same; Writ of Habeas Data; The writ of habeas data is an independent
and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to
provide a forum to enforce one’s right to the truth and to informational
privacy.—The writ of habeas data is an independent and summary
remedy designed to protect the image, privacy, honor, information,
and freedom of information of an individual, and to provide a forum
to enforce one’s right to the truth and to informational privacy. It seeks
to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends. It must be
emphasized that in order for the privilege of the writ to be granted,
there must exist a nexus between the right to privacy on the one hand,
and the right to life, liberty or security on the other.
Same; Private Armies; The Constitution explicitly mandates the
dismantling of private armies and other armed groups not recognized
by the duly constituted authority. — The Constitution explicitly
mandates the dismantling of private armies and other armed groups
not recognized by the duly constituted authority. It also provides for
the establishment of one police force that is national in scope and
civilian in character, and is controlled and administered by a national
police commission.
PETITION for review on certiorari of a decision of the Regional Trial
Court of Laoag City, Br. 13.
The facts are stated in the opinion of the Court.
Ferdinand P. Ignacio and Hidalgo, Estepa and Associates Law Offices
for petitioner.
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules
of Court) filed pursuant to Rule 19 of the Rule on the Writ of Habeas
Data, seeking a review of the 9 September 2010 Decision in Special
Proc. No. 14979 of the Regional Trial Court, First Judicial Region,
Laoag City, Branch 13 (RTC Br. 13). The questioned Decision denied
petitioner the privilege of the writ of habeas data.
At the time the present Petition was filed, petitioner Marynette R.
Gamboa (Gamboa) was the Mayor of Dingras, Ilocos Norte.
Meanwhile, respondent Police Senior Superintendent (P/SSUPT.)
Marlou C. Chan was the Officer-in-Charge, and respondent Police
Superintendent (P/SUPT.) William O. Fang was the Chief of the
Provincial Investigation and Detective Management Branch, both of
the Ilocos Norte Police Provincial Office.
On 8 December 2009, former President Gloria Macapagal-Arroyo
issued Administrative Order No. 275 (A.O. 275), “Creating an
Independent Commission to Address the Alleged Existence of Private
Armies in the Country.” The body, which was later on referred to as
85
the Zeñarosa Commission, was formed to investigate the existence of
private army groups (PAGs) in the country with a view to eliminating
them before the 10 May 2010 elections and dismantling them
permanently in the future. Upon the conclusion of its investigation,
the Zeñarosa Commission released and submitted to the Office of the
President a confidential report entitled “A Journey Towards H.O.P.E.:
The Independent Commission Against Private Armies’ Report to the
President” (the Report).
Gamboa alleged that the Philippine National Police in Ilocos Norte
(PNP–Ilocos Norte) conducted a series of surveillance operations
against her and her aides, and classified her as someone who keeps
a PAG. Purportedly without the benefit of data verification, PNP-Ilocos
Norte forwarded the information gathered on her to the Zeñarosa
Commission, thereby causing her inclusion in the Report’s
enumeration of individuals maintaining PAGs. More specifically, she
pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding
the status of PAGs in the Philippines.
(b) The Report stated that “x x x the PNP organized one dedicated
Special Task Group (STG) for each private armed group (PAG) to
monitor and counteract their activities.”
(c) Attached as Appendix “F” of the Report is a tabulation generated
by the PNP and captioned as “Status of PAGs Monitoring by STGs as
of April 19, 2010,” which classifies PAGs in the country according to
region, indicates their identity, and lists the prominent personalities
with whom these groups are associated. The first entry in the table
names a PAG, known as the Gamboa Group, linked to herein petitioner
Gamboa.
(d) Statistics on the status of PAGs were based on data from the
PNP, to wit:
“The resolutions were the subject of a national press conference held
in Malacañang on March 24, 2010 at which time, the Commission was
also asked to comment on the PNP report that out of one hundred
seventeen (117) partisan armed groups validated, twenty-four (24)
had been dismantled with sixty-seven (67) members apprehended and
more than eighty-six (86) firearms confiscated.
Commissioner Herman Basbaño qualified that said statistics were
based on PNP data but that the more significant fact from his report
is that the PNP has been vigilant in monitoring the activities of these
armed groups and this vigilance is largely due to the existence of the
Commission which has continued communicating with the [Armed
Forces of the Philippines (AFP)] and PNP personnel in the field to
constantly provide data on the activities of the PAGs. Commissioner
Basbaño stressed that the Commission’s efforts have preempted the
formation of the PAGs because now everyone is aware that there is a
body monitoring the PAGs[’] movement through the PNP.
Commissioner [Lieutenant General Edilberto Pardo Adan] also clarified
that the PAGs are being destabilized so that their ability to threaten
and sow fear during the election has been considerably weakened.”
(e) The Report briefly touched upon the validation system of the
PNP:
“Also, in order to provide the Commission with accurate data which is
truly reflective of the situation in the field, the PNP complied with the
Commission’s recommendation that they revise their validation system
to include those PAGs previously listed as dormant. In the most recent
briefing provided by the PNP on April 26, 2010, there are one hundred
seven (107) existing PAGs. Of these groups, the PNP reported that
seven (7) PAGs have been reorganized.”
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news
program the portion of the Report naming Gamboa as one of the
politicians alleged to be maintaining a PAG.
Gamboa averred that her association with a PAG also appeared on
print media. Thus, she was publicly tagged as someone who maintains
a PAG on the basis of the unverified information that the PNP-Ilocos
86
Norte gathered and forwarded to the Zeñarosa Commission. As a
result, she claimed that her malicious or reckless inclusion in the
enumeration of personalities maintaining a PAG as published in the
Report also made her, as well as her supporters and other people
identified with her, susceptible to harassment and police surveillance
operations.
Contending that her right to privacy was violated and her reputation
maligned and destroyed, Gamboa filed a Petition dated 9 July 2010
for the issuance of a writ of habeas data against respondents in their
capacities as officials of the PNP-Ilocos Norte. In her Petition, she
prayed for the following reliefs: (a) destruction of the unverified
reports from the PNP- Ilocos Norte database; (b) withdrawal of all
information forwarded to higher PNP officials; (c) rectification of the
damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining
respondents from making baseless reports.
The case was docketed as Special Proc. No. 14979 and was raffled to
RTC Br. 13, which issued the corresponding writ on 14 July 2010 after
finding the Petition meritorious on its face. Thus, the trial court (a)
instructed respondents to submit all information and reports
forwarded to and used by the Zeñarosa Commission as basis to include
her in the list of persons maintaining PAGs; (b) directed respondents,
and any person acting on their behalf, to cease and desist from
forwarding to the Zeñarosa Commission, or to any other government
entity, information that they may have gathered against her without
the approval of the court; (c) ordered respondents to make a written
return of the writ together with supporting affidavits; and (d)
scheduled the summary hearing of the case on 23 July 2010.
In their Return of the Writ, respondents alleged that they had acted
within the bounds of their mandate in conducting the investigation
and surveillance of Gamboa. The information stored in their database
supposedly pertained to two criminal cases in which she was
implicated, namely: (a) a Complaint for murder and frustrated murder
docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint
for murder, frustrated murder and direct assault upon a person in
authority, as well as indirect assault and multiple attempted murder,
docketed as NPS DOCKET No. 1-04-INV-10-A-00009.
Respondents likewise asserted that the Petition was incomplete for
failing to comply with the following requisites under the Rule on the
Writ of Habeas Data: (a) the manner in which the right to privacy was
violated or threatened with violation and how it affected the right to
life, liberty or security of Gamboa; (b) the actions and recourses she
took to secure the data or information; and (c) the location of the files,
registers or databases, the government office, and the person in
charge, in possession or in control of the data or information. They
also contended that the Petition for Writ of Habeas Data, being limited
to cases of extrajudicial killings and enforced disappearances, was not
the proper remedy to address the alleged besmirching of the
reputation of Gamboa.
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed
the Petition. The trial court categorically ruled that the inclusion of
Gamboa in the list of persons maintaining PAGs, as published in the
Report, constituted a violation of her right to privacy, to wit:
“In this light, it cannot also be disputed that by her inclusion in the list
of persons maintaining PAGs, [Gamboa]’s right to privacy indubitably
has been violated. The violation understandably affects her life, liberty
and security enormously. The untold misery that comes with the tag
of having a PAG could even be insurmountable. As she essentially
alleged in her petition, she fears for her security that at any time of
the day the unlimited powers of respondents may likely be exercised
to further malign and destroy her reputation and to transgress her
right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise
undisputed that there was certainly intrusion into [Gamboa]’s
activities. It cannot be denied that information was gathered as basis
therefor. After all, under Administrative Order No. 275, the Zeñarosa
Commission was tasked to investigate the existence of private armies
87
in the country, with all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, [Gamboa]
alleged as she accused respondents, who are public officials, of having
gathered and provided information that made the Zeñarosa
Commission to include her in the list. Obviously, it was this gathering
and forwarding of information supposedly by respondents that
petitioner barks at as unlawful. x x x.”
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the
Petition on the ground that Gamboa failed to prove through
substantial evidence that the subject information originated from
respondents, and that they forwarded this database to the Zeñarosa
Commission without the benefit of prior verification. The trial court
also ruled that even before respondents assumed their official
positions, information on her may have already been acquired. Finally,
it held that the Zeñarosa Commission, as the body tasked to gather
information on PAGs and authorized to disclose information on her,
should have been impleaded as a necessary if not a compulsory party
to the Petition.
Gamboa then filed the instant Appeal by Certiorari dated 24
September 2010, raising the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa Commission be
impleaded as either a necessary or indispensable party;
2. The trial court erred in declaring that [Gamboa] failed to present
sufficient proof to link respondents as the informant to [sic] the
Zeñarosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the
Zeñarosa Commission to [sic] the PNP as alleged by [Gamboa] is an
assumption;
5. The trial court erred in making a point that respondents are
distinct to PNP as an agency.
On the other hand, respondents maintain the following arguments:
(a) Gamboa failed to present substantial evidence to show that her
right to privacy in life, liberty or security was violated, and (b) the trial
court correctly dismissed the Petition on the ground that she had failed
to present sufficient proof showing that respondents were the source
of the report naming her as one who maintains a PAG.
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order,
fulfilling the mandate to dismantle PAGs in the country should be done
in accordance with due process, such that the gathering and
forwarding of unverified information on her must be considered
unlawful. She also reiterates that she was able to present sufficient
evidence showing that the subject information originated from
respondents.
In determining whether Gamboa should be granted the privilege of
the writ of habeas data, this Court is called upon to, first, unpack the
concept of the right to privacy; second, explain the writ of habeas data
as an extraordinary remedy that seeks to protect the right to
informational privacy; and finally, contextualize the right to privacy
vis-à-vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc, thus
enunciated:
“The due process question touching on an alleged deprivation of
liberty as thus resolved goes a long way in disposing of the objections
raised by plaintiff that the provision on the periodical submission of a
sworn statement of assets and liabilities is violative of the
constitutional right to privacy. There is much to be said for this view
of Justice Douglas: “Liberty in the constitutional sense must mean
more than freedom from unlawful governmental restraint; it must
88
include privacy as well, if it is to be a repository of freedom. The right
to be let alone is indeed the beginning of all freedom.” As a matter of
fact, this right to be let alone is, to quote from Mr. Justice Brandeis
“the most comprehensive of rights and the right most valued by
civilized men.”
The concept of liberty would be emasculated if it does not likewise
compel respect for his personality as a unique individual whose claim
to privacy and interference demands respect. x x x.
xxx xxx xxx
x x x [I]n the leading case of Griswold v. Connecticut, Justice Douglas,
speaking for five members of the Court, stated: “Various guarantees
create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers ‘in any
house’ in time of peace without the consent of the owner is another
facet of that privacy. The Fourth Amendment explicitly affirms the
‘right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.’ The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: ‘The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” After
referring to various American Supreme Court decisions, Justice
Douglas continued: “These cases bear witness that the right of privacy
which presses for recognition is a legitimate one.”
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: “The concept of limited government
has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed
one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government, safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector —
protection, in other words, of the dignity and integrity of the individual
— has become increasingly important as modern society has
developed. All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society.”
(Emphases supplied)
In Ople v. Torres, this Court traced the constitutional and statutory
bases of the right to privacy in Philippine jurisdiction, to wit:
“Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. It is expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions
of the Bill of Rights, viz.:
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
89
warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health as may be
provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies
for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Zones of privacy are likewise recognized and protected in our laws.
The Civil Code provides that “[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other
persons” and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public
officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, and recognizes
the privacy of letters and other private communications. The Revised
Penal Code makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-
Wiretapping Law, the Secrecy of Bank Deposits Act and the
Intellectual Property Code. The Rules of Court on privileged
communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence,
it is the burden of government to show that A.O. No. 308 is justified
by some compelling state interest and that it is narrowly drawn. x x
x.” (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that
must be protected from intrusion or constraint. However, in Standard
Chartered Bank v. Senate Committee on Banks, this Court
underscored that the right to privacy is not absolute, viz.:
“With respect to the right of privacy which petitioners claim
respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of persons affected by
the legislative investigation, not every invocation of the right to privacy
should be allowed to thwart a legitimate congressional inquiry. In
Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the
right to privacy of ordinary financial transactions. In that case, we
declared that the right to privacy is not absolute where there is an
overriding compelling state interest. Employing the rational basis
relationship test, as laid down in Morfe v. Mutuc, there is no
infringement of the individual’s right to privacy as the requirement to
disclosure information is for a valid purpose, in this case, to ensure
that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign
securities. Suffice it to state that this purpose constitutes a reason
compelling enough to proceed with the assailed legislative
investigation.”
Therefore, when the right to privacy finds tension with a competing
state objective, the courts are required to weigh both notions. In these
cases, although considered a fundamental right, the right to privacy
may nevertheless succumb to an opposing or overriding state interest
deemed legitimate and compelling.
90
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy. It seeks
to protect a person’s right to control information regarding oneself,
particularly in instances in which such information is being collected
through unlawful means in order to achieve unlawful ends. It must be
emphasized that in order for the privilege of the writ to be granted,
there must exist a nexus between the right to privacy on the one hand,
and the right to life, liberty or security on the other. Section 1 of the
Rule on the Writ of Habeas Data reads:
“Habeas data.—The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data information regarding the person, family,
home and correspondence of the aggrieved party.”
The notion of informational privacy is still developing in Philippine law
and jurisprudence. Considering that even the Latin American habeas
data, on which our own Rule on the Writ of Habeas Data is rooted,
finds its origins from the European tradition of data protection, this
Court can be guided by cases on the protection of personal data
decided by the European Court of Human Rights (ECHR). Of particular
note is Leander v. Sweden, in which the ECHR balanced the right of
citizens to be free from interference in their private affairs with the
right of the state to protect its national security. In this case, Torsten
Leander (Leander), a Swedish citizen, worked as a temporary
replacement museum technician at the Naval Museum, which was
adjacent to a restricted military security zone. He was refused
employment when the requisite personnel control resulted in an
unfavorable outcome on the basis of information in the secret police
register, which was kept in accordance with the Personnel Control
Ordinance and to which he was prevented access. He claimed, among
others, that this procedure of security control violated Article 8 of the
European Convention of Human Rights on the right to privacy, as
nothing in his personal or political background would warrant his
classification in the register as a security risk.
The ECHR ruled that the storage in the secret police register of
information relating to the private life of Leander, coupled with the
refusal to allow him the opportunity to refute the same, amounted to
an interference in his right to respect for private life. However, the
ECHR held that the interference was justified on the following
grounds: (a) the personnel control system had a legitimate aim, which
was the protection of national security, and (b) the Personnel Control
Ordinance gave the citizens adequate indication as to the scope and
the manner of exercising discretion in the collection, recording and
release of information by the authorities. The following statements of
the ECHR must be emphasized:
“58. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued (see, inter alia, the Gillow
judgment of 24 November 1986, Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy
a margin of appreciation, the scope of which will depend not only on
the nature of the legitimate aim pursued but also on the particular
nature of the interference involved. In the instant case, the interest of
the respondent State in protecting its national security must be
balanced against the seriousness of the interference with the
applicant’s right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of
protecting national security, for the Contracting States to have laws
granting the competent domestic authorities power, firstly, to collect
and store in registers not accessible to the public information on
persons and, secondly, to use this information when assessing the
suitability of candidates for employment in posts of importance for
national security.
91
Admittedly, the contested interference adversely affected Mr.
Leander’s legitimate interests through the consequences it had on his
possibilities of access to certain sensitive posts within the public
service. On the other hand, the right of access to public service is not
as such enshrined in the Convention (see, inter alia, the Kosiek
judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and,
apart from those consequences, the interference did not constitute an
obstacle to his leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of
appreciation available to the respondent State in assessing the
pressing social need in the present case, and in particular in choosing
the means for achieving the legitimate aim of protecting national
security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities
was not communicated to Mr. Leander cannot by itself warrant the
conclusion that the interference was not “necessary in a democratic
society in the interests of national security”, as it is the very absence
of such communication which, at least partly, ensures the efficacy of
the personnel control procedure (see, mutatis mutandis, the above-
mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted before
the issue of the Ordinance of 1969, including the Chancellor of Justice
and the Parliamentary Ombudsman, considered it desirable that the
rule of communication to the person concerned, as contained in
section 13 of the Ordinance, should be effectively applied in so far as
it did not jeopardise the purpose of the control (see paragraph 31
above).
67. The Court, like the Commission, thus reaches the conclusion that
the safeguards contained in the Swedish personnel control system
meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having
regard to the wide margin of appreciation available to it, the
respondent State was entitled to consider that in the present case the
interests of national security prevailed over the individual interests of
the applicant (see paragraph 59 above). The interference to which Mr.
Leander was subjected cannot therefore be said to have been
disproportionate to the legitimate aim pursued.” (Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific
component of the right to privacy, may yield to an overriding
legitimate state interest. In similar fashion, the determination of
whether the privilege of the writ of habeas data, being an
extraordinary remedy, may be granted in this case entails a delicate
balancing of the alleged intrusion upon the private life of Gamboa and
the relevant state interest involved.
The collection and forwarding of information by the PNP vis-à-vis the
interest of the state to dismantle private armies
The Constitution explicitly mandates the dismantling of private armies
and other armed groups not recognized by the duly constituted
authority. It also provides for the establishment of one police force
that is national in scope and civilian in character, and is controlled and
administered by a national police commission.
Taking into account these constitutional fiats, it is clear that the
issuance of A.O. 275 articulates a legitimate state aim, which is to
investigate the existence of PAGs with the ultimate objective of
dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O. 275
clothed it with the powers of an investigative body, including the
power to summon witnesses, administer oaths, take testimony or
evidence relevant to the investigation and use compulsory processes
to produce documents, books, and records. A.O. 275 likewise
authorized the Zeñarosa Commission to deputize the Armed Forces of
the Philippines, the National Bureau of Investigation, the Department
of Justice, the PNP, and any other law enforcement agency to assist
the commission in the performance of its functions.
92
Meanwhile, the PNP, as the national police force, is empowered by law
to (a) enforce all laws and ordinances relative to the protection of lives
and properties; (b) maintain peace and order and take all necessary
steps to ensure public safety; and (c) investigate and prevent crimes.
Pursuant to the state interest of dismantling PAGs, as well as the
foregoing powers and functions accorded to the Zeñarosa Commission
and the PNP, the latter collected information on individuals suspected
of maintaining PAGs, monitored them and counteracted their
activities.65 One of those individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that
the data contained in the Report listing her as a PAG coddler came
from the PNP. Contrary to the ruling of the trial court, however, the
forwarding of information by the PNP to the Zeñarosa Commission was
not an unlawful act that violated or threatened her right to privacy in
life, liberty or security.
The PNP was rationally expected to forward and share intelligence
regarding PAGs with the body specifically created for the purpose of
investigating the existence of these notorious groups. Moreover, the
Zeñarosa Commission was explicitly authorized to deputize the police
force in the fulfillment of the former’s mandate, and thus had the
power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that
the PNP released information to the Zeñarosa Commission without
prior communication to Gamboa and without affording her the
opportunity to refute the same cannot be interpreted as a violation or
threat to her right to privacy since that act is an inherent and crucial
component of intelligence- gathering and investigation. Additionally,
Gamboa herself admitted that the PNP had a validation system, which
was used to update information on individuals associated with PAGs
and to ensure that the data mirrored the situation on the field. Thus,
safeguards were put in place to make sure that the information
collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court
declines to make any further determination as to the propriety of
sharing information during specific stages of intelligence gathering. To
do otherwise would supplant the discretion of investigative bodies in
the accomplishment of their functions, resulting in an undue
encroachment on their competence. However, to accord the right to
privacy with the kind of protection established in existing law and
jurisprudence, this Court nonetheless deems it necessary to caution
these investigating entities that information-sharing must observe
strict confidentiality. Intelligence gathered must be released
exclusively to the authorities empowered to receive the relevant
information. After all, inherent to the right to privacy is the freedom
from “unwarranted exploitation of one’s person or from intrusion into
one’s private activities in such a way as to cause humiliation to a
person’s ordinary sensibilities.”
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature. That it was leaked to third parties
and the media was regrettable, even warranting reproach. But it must
be stressed that Gamboa failed to establish that respondents were
responsible for this unintended disclosure. In any event, there are
other reliefs available to her to address the purported damage to her
reputation, making a resort to the extraordinary remedy of the writ of
habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through
substantial evidence that her inclusion in the list of individuals
maintaining PAGs made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard,
respondents sufficiently explained that the investigations conducted
against her were in relation to the criminal cases in which she was
implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of
dismantling PAGs far outweighs the alleged intrusion on the private
life of Gamboa, especially when the collection and forwarding by the
93
PNP of information against her was pursuant to a lawful mandate.
Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed
Decision in Special Proc. No. 14979 dated 9 September 2010 of the
Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa
the privilege of the writ of habeas data, is AFFIRMED.
SO ORDERED.
Carpio, Velasco, Jr., Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, Reyes and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, J., On Official Leave.
Brion and Mendoza, JJ., On Leave.
Peralta, J., On official business.
Petition denied, judgment affirmed.
Notes.—The writ of habeas data was conceptualized as a judicial
remedy enforcing the right to privacy, most especially the right to
informational privacy of individuals. The writ operates to protect a
person’s right to control information regarding himself, particularly in
the instances where such information is being collected through
unlawful means in order to achieve unlawful ends. (Roxas vs.
Macapagal-Arroyo, 630 SCRA 211 [2010])
The writ of habeas data provides a judicial remedy to protect a
person’s right to control information regarding oneself, particularly in
instances where such information is being collected through unlawful
means in order to achieve unlawful ends. (Rodriguez vs. Macapagal-
Arroyo, 660 SCRA 84 [2011])
——o0o——
CIRIACO ‘BOY’ GUINGGUING, petitioner, vs. THE
HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents
Criminal Law; Libel; Definition of Libel; Elements of Libel. — Under our
law, criminal libel is defined as a public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead. Thus, the elements of libel are: (a)
imputation of a discreditable act or condition to another; (b)
publication of the imputation; (c) identity of the person defamed; and,
(d) existence of malice.
Same; Same; Court has accepted the proposition that the actual
malice standard governs the prosecution of criminal libel concerning
public figures. — This Court has accepted the proposition that the
actual malice standard governs the prosecution of criminal libel cases
concerning public figures. In Adiong v. COMELEC, the Court cited New
York Times in noting that “[w]e have adopted the principle that debate
on public issues should be uninhibited, robust, and wide open and that
it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials.”
Same; Same; Court has likewise extended the “actual malice” rule to
apply not only to public officials but also to public figures; Definition
of a public figure propounded by an American textbook on torts. —
The Court has likewise extended the “actual malice” rule to apply not
only to public officials, but also to public figures. In Ayer Productions
Pty. Ltd. v. Capulong, the Court cited with approval the following
definition of a public figure propounded by an American textbook on
torts: A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a profession
or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a ‘public personage.’ He is, in
other words, a celebrity. Obviously to be included in this category are
those who have achieved some degree of reputation by appearing
94
before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, an infant prodigy,
and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public
attention is focused upon him as a person.
Same; Same; Measured against the definition provided in Ayer,
complainant would definitely qualify as a public figure. — There should
be little controversy in holding that complainant is a public figure. He
is a broadcast journalist hosting two radio programs aired over a large
portion of the Visayas and Mindanao. Measured against the definition
provided in Ayer, complainant would definitely qualify as a public
figure. Complainant even asserted before the trial court that his
broadcast was listened to widely, hence, his notoriety is
unquestionable.
Same; Same; As it has been established that complainant was a public
figure, it was incumbent upon the prosecution to prove actual malice
on the part of Lim and petitioner when the latter published the article
subject matter of the complaint; Any statement that does not contain
a provably false factual connotation will receive full constitutional
protection.—As it has been established that complainant was a public
figure, it was incumbent upon the prosecution to prove actual malice
on the part of Lim and petitioner when the latter published the article
subject matter of the complaint. Set otherwise, the prosecution must
have established beyond reasonable doubt that the defendants knew
the statements in the advertisement was false or nonetheless
proceeded with reckless disregard as to publish it whether or not it
was true. It should thus proceed that if the statements made against
the public figure are essentially true, then no conviction for libel can
be had. Any statement that does not contain a provably false factual
connotation will receive full constitutional protection. An examination
of the records of this case showed that the précis of information
contained in the questioned publication were actually true.
Same; Same; Article 354 of the Revised Penal Code as applied to
public figures complaining of criminal libel must be construed in light
of the constitutional guarantee of free expression and this Court’s
precedents upholding the standard of actual malice with the necessary
implication that a statement regarding a public figure if true is not
libelous.—In convicting the defendants, the lower courts paid
particular heed to Article 354 of the Revised Penal Code, which
provides that “every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive
for making it is shown. . . .” We hold that this provision, as applied to
public figures complaining of criminal libel, must be construed in light
of the constitutional guarantee of free expression, and this Court’s
precedents upholding the standard of actual malice with the necessary
implication that a statement regarding a public figure if true is not
libelous. The provision itself allows for such leeway, accepting as a
defense “good intention and justifiable motive.” The exercise of free
expression, and its concordant assurance of commentary on public
affairs and public figures, certainly qualify as “justifiable motive,” if not
“good intention.”
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Lord M. Marapao for petitioner.
Loreto M. Durano for private respondent.
TINGA, J.:
The liberty of the press is indeed essential. Whoever would overthrow
the liberty of a nation must begin by subduing the freeness of speech.
—Benjamin Franklin
The right of free expression stands as a hallmark of the modern
democratic and humane state. Not only does it assure a person’s right
to say freely what is thought freely, it likewise evinces the polity’s
freedom from psychological insecurity. This fundamental liberty is
95
translated into the constitutional guarantee that no law shall be passed
abridging the freedom of speech, of expression, or the press,
contained in the Bill of Rights, which itself obtains a position of primacy
in our fundamental law.
Criminal libel laws present a special problem. At face value, they might
strike as laws passed that abridge the freedom of speech, expression,
or the press. Whatever seeming conflict between these two precepts
has long been judicially resolved with the doctrine that libelous speech
does not fall within the ambit of constitutional protection. Nonetheless,
in ascertaining what class of materials may be considered as libelous,
the freedom of expression clause, its purposes as well as the evils it
guards against, warrant primordial consideration and application.
Before this Court is a Petition for Review under Rule 45 of the 1997
Rules of Civil Procedure, assailing the Decision6 and the Resolution7
of the Court of Appeals (CA) dated 29 July 1996 and 3 October 1996,
respectively, in CA-G.R. CR No. 16413. The CA affirmed with
modification 8 the decision rendered by the Regional Trial Court (RTC),
Branch 7 of Cebu City, finding Ciriaco “Boy” Guingguing (petitioner)
and Segundo Lim (Lim) guilty beyond reasonable doubt of the crime
of libel. This petition for certiorari was filed by petitioner alone, hence
the verdict of guilt with respect to Lim had already become final and
executory.
advertisement paid for by Lim in the Sunday Post, a weekly publication
edited and published by petitioner. The Sunday Post was circulated in
the province of Bohol, as well as in the Visayas and Mindanao. The full
text of the advertisement which was the basis of the information for
libel reads:
REQUEST FOR PUBLIC SERVICE
ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY
TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO
ENLIGHTEN ME REGARDING THE DISPOSITION OF THE FOLLOWING
WHICH APPEAR HEREUNDER. THE CASES WERE FOUND IN THE
BLOTTER OF THE CEBU CITY POLICE DEPARTMENT. PLEASE DO TELL
ME THE STATUS OF THOSE CASES, WHETHER THEY HAVE BEEN
DISMISSED, ARCHIVED AND/OR PENDING.
Name: CIRSE ‘CHOY’ TORRALBA
CRIM. CASE NO. R-43035
FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS

The antecedent facts follow. ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

This case originated from a criminal complaint for libel filed by Cirse MR. VICTORIANO VELOSO
“Choy” Torralba (complainant) against Lim and petitioner under ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
Criminal Case No. CBU-26582. Complainant was a broadcast journalist
who handled two programs for radio stations DYLA and DYFX. The DISPOSITION: PENDING ARREST
radio stations were based in Cebu City but the programs were aired
over a large portion of the Visayas and Mindanao.
CRIM. CASE NO. 17984-R
On 13 October 1991, Lim caused the publication of records of criminal
cases filed against complainant as well as photo-graphs of the latter FOR: ESTAFA
being arrested. These were published by means of a one-page
DATE FILED: July 12, 1982

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COMPLAINANTS: MR. PIO Y. GO AND ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY
TORRALBA TO HAVE BEEN SERVED A WARRANT OF ARREST IN A
MRS. ROSALITA R. ROLDAN
(P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF THE
ADDRESS: c/o 2nd Floor Martinez Bldg. CEBU CITY POLICE. NOW TELL ME, IS IT YOU THE SAME CHOY
TORRALBA REFERRED TO IN THE CAPTION STORY. IF INDEED YOU
(ALPHA MKTG., INC.), ARE THE ONE AND THE SAME WHO APPEARED IN THE PICTURE
BELOW, PLEASE TO (sic) INFORM ME.:
Jones Ave., Cebu City
[Thereafter followed by another picture, this time, the face of the
DISPOSITION: PENDING ARREST
person being arrested is clearly shown to be that of Cirse Choy
CRIM. CASE NO. 14843-R Torralba, followed by this caption.]

FOR: SERIOUS PHYSICAL INJURIES SERENE EVENING: The otherwise serene evening enjoyed by
businessman Choy Torralba (left) in a plush uptown Hotel was
DATED FILED: APRIL 28, 1980 disturbed by operatives (right) of the Cebu City Police under P/Lt/Col.
COMPLAINANTS: Eduardo Ricardo just to serve on the former a warrant of arrest issued
by Cebu RTC Judge German Lee relative to the suit filed by Apocemco
ADDRESS: against the businessman (PR)
DISPOSITION: PROVISIONALLY DISMISSED THANK YOU, AND MY BEST REGARDS.

DATED: APRIL 14, 1991
NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER
CLIPPING COURTESY OF A CEBU CITY CONCERNED CITIZEN. THE
CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE
BUSINESSMAN ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.
[Thereafter followed by a picture of a person with face blotted out
being arrested and an inset picture of the same person with face
likewise blotted out, being detained, these pictures being followed by
the caption, which states]:
‘ESTAFA CASE. Members of Cebu City Police Intelligence group under
Lt. Col. Eduardo Ricardo arrested last night a businessman (extreme
left) for his alleged involvement in estafa case filed by APOCEMCO.
Left photo a member of the team serves the warrant of arrest order
issued by CEBU RTC Judge German Lee.
PAID SPACE BY: (sgd.) SEGUNDO LIM
Asserting inter alia that he had been acquitted and the case/s referred
to had already been settled, complainant sought Lim and petitioner’s
conviction for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as attorney’s fees
because the publication allegedly placed him in public contempt and
ridicule. It was claimed that the publication was also designed to
degrade and malign his person and destroy him as a broadcast
journalist.
Lim, in his defense, claimed that complainant was allegedly making
scurrilous attacks against him and his family over the airwaves. Since
Lim had no access to radio time, he opted for paid advertisements via
newspaper to answer the attacks, as a measure of self-defense. Lim
also argued that complainant, as a media man and member of the
fourth estate, occupied a position almost similar to a public functionary

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and should not be onion-skinned and be able to absorb the thrust of
public scrutiny.
After trial, the lower court concluded that the publication complained
of was indeed libelous. Declaring that malice is the most important
element of libel, it held that the same was present in the case because
every defamatory publication prima facie implies malice on the part of
the author and publisher towards the person subject thereof. The
lower court gave no credence to Lim and petitioner’s argument that
the publication was resorted to in self-defense.
The trial court likewise disregarded the insulative effects of
complainant’s status as a mediaman to the prosecution of the criminal
libel charge. The publication of a calumny even against public officers
or candidates for public office, according to the trial court, is an
offense most dangerous to the people. It deserves punishment
because the latter may be deceived thereby and reject the best and
deserving citizens to their great injury. It further held that a private
reputation is as constitutionally protected as the enjoyment of life,
liberty and property such that anybody who attacks a person’s
reputation by slanderous words or libelous publications is obliged to
make full compensation for the damage done.
On appeal, the CA modified the penalty imposed but it affirmed the
RTC’s finding of guilt. The CA likewise held that self-defense was
unavailing as a justification since the defendant should not go beyond
explaining what was previously said of him. The appellate court
asserted that the purpose of self-defense in libel is to repair, minimize
or remove the effect of the damage caused to him but it does not
license the defendant to utter blow-for-blow scurrilous language in
return for what he received. Once the defendant hits back with equal
or more scurrilous remarks unnecessary for his defense, the retaliation
becomes an independent act for which he may be liable. For this
reason, the CA refused to sanction the invocation of self-defense.
Petitioner now comes before this Court praying for the reversal of the
judgment against him. Petitioner contends inter alia that as editor-
publisher of the Sunday Post and as a member of the fourth estate,
the lower courts’ finding of guilt against him constitutes an
infringement of his constitutional right to freedom of speech and of
the press. Petitioner likewise faults the lower courts’ failure to
appreciate their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of
whether the publication subject matter of the instant case is indeed
libelous. While the findings and conclusions of the lower courts are
rigid in their application of the strict letter of the law, the issue seems
more complex than it appears at first blush. The Court is compelled to
delve deeper into the issue considering that libel principles formulated
at one time or another have waxed and waned through the years, in
the constant ebb and flow of judicial review. A change in the factual
milieu of a case is apt to evoke a change in the judgment applicable.
Viewed in this context, the petition has merit and the judgment
appealed from must be reversed.
Criminal Libel vis-à-vis the
Guarantee of Free Speech
Under our law, criminal libel is defined as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.25 Thus, the elements of libel
are: (a) imputation of a discreditable act or condition to another; (b)
publication of the imputation; (c) identity of the person defamed; and,
(d) existence of malice.
Originally, the truth of a defamatory imputation was not considered a
defense in the prosecution for libel. In the landmark opinion of
England’s Star Chamber in the Libelis Famosis case in 1603, two major
propositions in the prosecution of defamatory remarks were
established: first, that libel against a public person is a greater offense
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than one directed against an ordinary man, and second, that it is
immaterial that the libel be true. These propositions were due to the
fact that the law of defamatory libel was developed under the common
law to help government protect itself from criticism and to provide an
outlet for individuals to defend their honor and reputation so they
would not resort to taking the law into their own hands.
Our understanding of criminal libel changed in 1735 with the trial and
acquittal of John Peter Zenger for seditious libel in the then English
colony of New York. Zenger, the publisher of the New-York Weekly
Journal, had been charged with seditious libel, for his paper’s
consistent attacks against Colonel William Cosby, the Royal Governor
of New York. In his defense, Zenger’s counsel, Andrew Hamilton,
argued that the criticisms against Governor Cosby were “the right of
every free-born subject to make when the matters so published can
be supported with truth.” The jury, by acquitting Zenger,
acknowledged albeit unofficially the defense of truth in a libel action.
The Zenger case also laid to rest the idea that public officials were
immune from criticism.
The Zenger case is crucial, not only to the evolution of the doctrine of
criminal libel, but also to the emergence of the American democratic
ideal. It has been characterized as the first landmark in the tradition
of a free press, then a somewhat radical notion that eventually evolved
into the First Amendment in the American Bill of Rights and also
proved an essential weapon in the war of words that led into the
American War for Independence.
Yet even in the young American state, the government paid less than
ideal fealty to the proposition that Congress shall pass no law
abridging the freedom of speech. The notorious Alien and Sedition
Acts of 1798 made it a crime for any person who, by writing, speaking
or printing, should threaten an officer of the government with damage
to his character, person, or estate. The law was passed at the
insistence of President John Adams, whose Federalist Party had held
a majority in Congress, and who had faced persistent criticism from
political opponents belonging to the Jeffersonian Republican Party. As
a result, at least twenty-five people, mostly Jeffersonian Republican
editors, were arrested under the law. The Acts were never challenged
before the U.S. Supreme Court, but they were not subsequently
renewed upon their expiration.
The massive unpopularity of the Alien and Sedition Acts contributed
to the electoral defeat of President Adams in 1800. In his stead was
elected Thomas Jefferson, a man who once famously opined, “Were
it left to me to decide whether we should have a government without
newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter.”
There is an important observation to be made about the quality of the
American press during the time of Jefferson, one that is crucial to the
contemporaneous understanding of the “freedom of expression”
clause at the time of its inception. The tenor of the public debate
during that era was hardly polite. About the impending election of
Jefferson, the New England Courant predicted that “murder, robbery,
rape and adultery and incest will be openly taught and practiced, the
air will be rent with cries of distress, the soil soaked with blood and
the nation black with crimes.” After Jefferson was elected, rumors
spread about his dalliances with his slave, Sally Hemmings, adding
more fodder to his critics. The thirteen-year old William Cullen Bryant,
who would grow up to become a prominent poet and abolitionist,
published the following doggerel: “Thy country’s ruin and thy country’s
shame!/ Go wretch! Resign the Presidential chair/Disclose thy secret
measures foul and fair. . . / Go scan, philosophist, thy [Sally’s]
charms/And sink supinely in her sable arms.”
Any comprehensive history of the American media during the first few
decades of the existence of the United States would reveal a similar
preference in the media for such “maddog rhetoric.” These
observations are important in light of the misconception that freedom
of expression extends only to polite, temperate, or reasoned
expression. The assailed decision of the RTC betrays such a
perception, when it opined that the subject advertisement was libelous
“because by the language used, it had passed from the bounds of
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playful gist, and intensive criticism into the region of scurrilous
calumniation and intemperate personalities.” Evidently, the First
Amendment was designed to protect expression even at its most
rambunctious and vitriolic form as it had prevalently taken during the
time the clause was enacted.
Nonetheless, juristic enforcement of the guarantee of freedom of
expression was not demonstrably prominent in the United States
during most of the 1800s. Notably, the prevalent philosophy then was
that the Bill of Rights did not apply to the different federal states.
When the US Supreme Court was confronted with substantial First
Amendment issues in the late 1800s and early 1900s, it responded by
repeatedly declining to protect free speech. The subsequent
enactment of the due process clause in the Fourteenth Amendment
eventually allowed the U.S. Supreme Court to accept, in Gitlow v. New
York that the First Amendment was protected from impairment by the
States, thus allowing for a more vigorous enforcement of the freedom
of expression clause in the twentieth century.
The most important American ruling on libel, arguably from which
modern libel law emerged was New York Times v. Sullivan, penned by
the liberal lion Justice William Brennan, Jr. In ascertaining whether the
New York Times was liable for damages in a libel action, the U.S.
Supreme Court had acknowledged that the writing in question, an
advertisement published in the paper extolling the virtues of the civil
rights movement, had contained several factual inaccuracies in
describing actions taken by Montgomery, Alabama officials on civil
rights protesters. The Court even concluded that at most, there was a
finding against the New York Times of negligence in failing to discover
the misstatements against the news stories in the newspaper’s own
files.
Nonetheless, the U.S. Supreme Court squarely assessed the import of
the First Amendment freedoms in the prosecution of criminal libel.
Famously, the precedent was established that a public official may not
successfully sue for libel unless the official can prove actual malice,
which was defined as “with knowledge that the statement was false
or with reckless disregard as to whether or not it was true.” By this
standard, it was concluded that factual errors aside, actual malice was
not proven to sustain the convictions for libel.
Moreover, leeway was allowed even if the challenged statements were
factually erroneous if honestly made.
Shortly after New York Times was promulgated, its principles were
extended by the U.S. Supreme Court to criminal libel actions in
Garrison v. Louisiana. The decision, also penned by Justice Brennan,
commented on the marked decline in the common resort to criminal
libel actions:
Where criticism of public officials is concerned, we see no merit in the
argument that criminal libel statutes serve interests distinct from those
secured by civil libel laws, and therefore should not be subject to the
same limitations. At common law, truth was no defense to criminal
libel. Although the victim of a true but defamatory publication might
not have been unjustly damaged in reputation by the libel, the speaker
was still punishable since the remedy was designed to avert the
possibility that the utterance would provoke an enraged victim to a
breach of peace . . .
[However], preference for the civil remedy, which enabled the
frustrated victim to trade chivalrous satisfaction for damages, has
substantially eroded the breach of peace justification for criminal libel
laws. In fact, in earlier, more violent times, the civil remedy had
virtually pre-empted the field of defamation; except as a weapon
against seditious libel, the criminal prosecution fell into virtual
desuetude.
Then, the Court proceeded to consider whether the historical limitation
of the defense of truth in criminal libel to utterances published “with
good motives and for justifiable ends:”
. . . The “good motives” restriction incorporated in many state
constitutions and statutes to reflect Alexander Hamilton’s
unsuccessfully urged formula in People v. Croswell, liberalized the
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common-law rule denying any defense for truth. . . . In any event,
where the criticism is of public officials and their conduct of public
business, the interest in private reputation is overborne by the larger
public interest, secured by the Constitution, in the dissemination of
truth. . . .
Moreover, even where the utterance is false, the great principles of
the Constitution which secure freedom of expression in this area
preclude attaching adverse consequences to any except the knowing
or reckless falsehood. Debate on public issues will not be uninhibited
if the speaker must run the risk that it will be proved in court that he
spoke out of hatred; even if he did speak out of hatred, utterances
honestly believed contribute to the free interchange of ideas and the
ascertainment of truth. . . .
Lest the impression be laid that criminal libel law was rendered extinct
in regards to public officials, the Court made this important
qualification in Garrison:
The use of calculated falsehood, however, would put a different cast
on the constitutional question. Although honest utterance, even if
inaccurate, may further the fruitful exercise of the right of free speech,
it does not follow that the lie, knowingly and deliberately published
about a public official, should enjoy a like immunity. At the time the
First Amendment was adopted, as today, there were those
unscrupulous enough and skillful enough to use the deliberate or
reckless falsehood as an effective political tool to unseat the public
servant or even topple an administration. That speech is used as a
tool for political ends does not automatically bring it under the
protective mantle of the Constitution. For the use of the known lie as
a tool is at once with odds with the premises of democratic
government and with the orderly manner in which economic, social,
or political change is to be effected.
Another ruling crucial to the evolution of our understanding was Curtis
Publishing Co. v. Butts, which expanded the actual malice test to cover
not just public officials, but also public figures. The U.S. Supreme
Court, speaking through Chief Justice Warren, stated that:
[D]ifferentiation between ‘public figures’ and ‘public officials’ and
adoption of separate standards of proof for each have no basis in law,
logic, or First Amendment policy. Increasingly in this country, the
distinctions between governmental and private sectors are blurred. . .
. [I]t is plain that although they are not subject to the restraints of the
political process, ‘public figures’, like ‘public officials’, often play an
influential role in ordering society. And surely as a class these ‘public
figures’ have as ready access as ‘public officials’ to mass media of
communication, both to influence policy and to counter criticism of
their views and activities. Our citizenry has a legitimate and substantial
interest in the conduct of such persons, and freedom of the press to
engage in uninhibited debate about their involvement in public issues
and events is as crucial as it is in the case of “public officials.” The fact
that they are not amenable to the restraints of the political process
only underscores the legitimate and substantial nature of the interest,
since it means that public opinion may be the only instrument by which
society can attempt to influence their conduct.
The public figure concept was later qualified in the case of Gertz v.
Welch, Inc., which held that a private person should be able to recover
damages without meeting the New York Times standard. In doing so,
the US Supreme Court recognized the legitimate state interest in
compensating private individuals for wrongful injury to reputation.
The prominent American legal commentator, Cass Sunstein, has
summarized the current American trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit system of free
speech tiers. To simplify a complex body of law: In the highest, most-
speech protective tier is libelous speech directed against a “public
figure”. Government can allow libel plaintiffs to recover damages as a
result of such speech if and only if the speaker had “actual malice”—
that is, the speaker must have known that the speech was false, or he
must have been recklessly indifferent to its truth or falsity. This
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standard means that the speaker is protected against libel suits unless
he knew that he was lying or he was truly foolish to think that he was
telling the truth. A person counts as a public figure (1) if he is a “public
official” in the sense that he works for the government, (2) if, while
not employed by government, he otherwise has pervasive fame or
notoriety in the community, or (3) if he has thrust himself into some
particular controversy in order to influence its resolution. Thus, for
example, Jerry Falwell is a public figure and, as a famous case holds,
he is barred from recovering against a magazine that portrays him as
having had sex with his mother. Movie stars and famous athletes also
qualify as public figures. False speech directed against public figures
is thus protected from libel actions except in quite extreme
circumstances.
It may also be noted that this heightened degree of protection
afforded to free expression to comment on public figures or matters
against criminal prosecution for libel has also gained a foothold in
Europe. Article 10 of the European Convention on Human Rights and
Fundamental Freedoms provides that “[e]veryone has the right to
freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.” The
European Court of Human Rights applied this provision in Lingens v.
Austria, in ruling that the Republic of Austria was liable to pay
monetary damages “as just satisfaction” to a journalist who was found
guilty for defamation under the Austrian Criminal Code. The European
Court noted:
[Article 10] is applicable not only to ‘information’ or ‘ideas’ that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are
the demands of that pluralism, tolerance and broadmindedness
without which there is no ‘democratic society’. . . . These principles
are of particular importance as far as the press is concerned. Whilst
the press must not overstep the bounds set, inter alia, for the
‘protection of the reputation of others’, it is nevertheless incumbent
on it to impart information and ideas on political issues just as on those
in other areas of public interest. Not only does the press have the task
of imparting such information and ideas: the public also has the right
to receive them. . . .
The international trend in diminishing the scope, if not the viability, of
criminal libel prosecutions is clear. Most pertinently, it is also evident
in our own acceptance in this jurisdiction of the principles applied by
the U.S. Supreme Court in cases such as New York Times and
Garrison.
Particularly, this Court has accepted the proposition that the actual
malice standard governs the prosecution of criminal libel cases
concerning public figures. In Adiong v. COMELEC, the Court cited New
York Times in noting that “[w]e have adopted the principle that debate
on public issues should be uninhibited, robust, and wide open and that
it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials.” The Court was even
more explicit in its affirmation of New York Times in Vasquez v. Court
of Appeals. Speaking through Justice Mendoza:
For that matter, even if the defamatory statement is false, no liability
can attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual malice—
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. This is the gist of the ruling in the landmark
case of New York Times v. Sullivan, which this Court has cited with
approval in several of its own decisions. This is the rule of “actual
malice.” In this case, the prosecution failed to prove not only that the
charges made by petitioner were false but also that petitioner made
them with knowledge of their falsity or with reckless disregard of
whether they were false or not.
The Court has likewise extended the “actual malice” rule to apply not
only to public officials, but also to public figures. In Ayer Productions
Pty. Ltd. v. Capulong, the Court cited with approval the following
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definition of a public figure propounded by an American textbook on
torts:
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a profession
or calling which gives the public a legitimate interest in his doings, his
affairs, and his character, has become a ‘public personage.’ He is, in
other words, a celebrity. Obviously to be included in this category are
those who have achieved some degree of reputation by appearing
before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, an infant prodigy,
and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public
attention is focused upon him as a person.
Ayer did not involve a prosecution for libel, but a complaint for
injunction on the filming of a dramatized account of the 1986 EDSA
Revolution. Nonetheless, its definition of a public figure is important
to this case, as it clearly establishes that even non-governmental
officials are considered public figures. In fact, the definition
propounded in Ayer was expressly applied by the Court in Borjal v.
Court of Appeals in ascertaining whether the complainant therein was
a public figure, thus warranting the application of the actual malice
test.
We considered the following proposition as settled in this jurisdiction:
that in order to justify a conviction for criminal libel against a public
figure, it must be established beyond reasonable doubt that the
libelous statements were made or published with actual malice,
meaning knowledge that the statement was false or with reckless
disregard as to whether or not it was true. As applied to the present
petition, there are two main determinants: whether complainant is a
public figure, and assuming that he is, whether the publication of the
subject advertisement was made with actual malice. Sadly, the RTC
and the CA failed to duly consider both propositions.
Complainant Is a Public Figure
There should be little controversy in holding that complainant is a
public figure. He is a broadcast journalist hosting two radio programs
aired over a large portion of the Visayas and Mindanao. Measured
against the definition provided in Ayer, complainant would definitely
qualify as a public figure. Complainant even asserted before the trial
court that his broadcast was listened to widely, hence, his notoriety is
unquestionable.
Complainant’s standing as a public figure is further militated by the
contextual circumstances of the case. The newspaper in question, the
Sunday Post, is particularly in circulation in the areas where
complainant’s broadcasts were aired.
Certainly, it cannot be denied that the target audience of the
newspaper were the same persons who may have listened regularly
to the complainant’s broadcast. Even if the sphere of complainant’s
renown is limited in geography, it is in the same plane as the
circulation of the offending newspaper. The extent of complainant’s
ability to influence hearts and minds through his broadcasts need not
be established, only that he has such capacity and willingness to exert
an influence. Complainant’s volition to practice the radio broadcasting
profession necessarily thrusts him in the public sphere.
Actual Malice Not Proven
As it has been established that complainant was a public figure, it was
incumbent upon the prosecution to prove actual malice on the part of
Lim and petitioner when the latter published the article subject matter
of the complaint. Set otherwise, the prosecution must have
established beyond reasonable doubt that the defendants knew the
statements in the advertisement was false or nonetheless proceeded
with reckless disregard as to publish it whether or not it was true.
It should thus proceed that if the statements made against the public
figure are essentially true, then no conviction for libel can be had. Any
statement that does not contain a provably false factual connotation
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will receive full constitutional protection. An examination of the
records of this case showed that the précis of information contained
in the questioned publication were actually true. Thus, complainant
himself testified:
Q: But is it true that these cases published in Exhibit “F-1” are actually
existing or previous cases?
A: At the time of the publication those cases were terminated, long
terminated.
Q: But is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979 against you?
FISCAL ROCAMORA:
Your Honor, I believe the witness did not understand the question.
COURT: (to Stenographer)
Read back the question.
Q: Is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979, against you?
A: I really do not know about that accusation.
COURT:
Proceed.
ATTY. FLORIDO:
Q: When you came across the publication, did you check if in fact
there was a case docketed with that number against you? Did you
check?
A: I did not.
Q: Now, is it true that there was a criminal case against you for Estafa
docketed as criminal case No. 17984-R filed July 21, 1982 where the
complaints were Pio Go and Mrs. Rosalita Roldan?
A: Yes.
Q: Is it true that there was also a criminal case filed against you
numbered 14843-R for Serious Physical Injuries, date filed April 28,
1980 which in this publication appears provisionally dismissed April 14,
1991?
A: That case, I do not have any idea about it.
Q: Did you inquire from the appropriate Court when you received a
copy of this to find out if it is true that these cases were filed against
you?
A: As far as I know, in fact, I never received any subpoena or anything
about this case.
Q: Yes, but did you upon receipt of Exhibit “F-1”, did you inquire from
the Court whether it is true that these cases had been recorded as
filed against you?
A: Well, as far as I know like the Estafa case, I was already long been
acquitted in that case.
Q: You did not answer the question. Will you please answer.
COURT: (to witness)
Q: The question is, did you inquire from the Court concerned whether
that case exist?
A: Yes.
COURT:
Proceed.
ATTY. FLORIDO:
104
Q: And you discovered that they were true that this was provisionally
dismissed with reference to 14843-R for Serious Physical Injuries. You
made inquiries?
A: Yes.
Q: And you also know that Dr. Jovenal Almendras your godfather in
the wedding had also filed a case of Malicious Mischief against you?
A: I know but that was in the past.
Q: Yes, I know that that was in the past, but that is true?
A: Yes.
Q: So, there is nothing false so far as Exhibit “F-1”?
A: There is no question about that but that is malicious.
Q: Let me see. On the lefthand side of the bottom it says. “Not too
long ago, I received the following newspaper clippings courtesy of the
Cebu City concerned citizens. The caption story below tells all. If you
know who the businessman alluded to in the caption. Please do tells
me and then, there is a photograph a reprint from Sun Star
publication. Do you confirm that?
xxx
Q: But is it true that you were arrested per this photograph and I
quote. “In a plush uptown hotel was disturbed by operatives (right) of
the Cebu City Police under Police Lieutenant Col. Eduardo Ricardo just
to serve on the former a warrant of arrest issued by the Cebu RTC
Judge German Lee relative to the suit filed by Apocemco against a
businessman.” Is it true that you were arrested?
A: Yes.
Q: So this photograph is genuine photograph?
A: Yes.
Q: And you claimed that you have a good reputation and that good
reputation had been soiled by the accused in this case. Let me ask
you concerning your reputation then. Is it not a fact that aside from
this record of criminal cases appearing in Exhibit “F-1”, you have also
been at one time or another been accused of several other criminal
cases both in and out of the City of Cebu?
A: Yes, before, 10 years, 15 years ago.
Q: And in the Municipal Trial Court in Cities alone in Cebu City, you
have the following per certificate which we marked as Exhibit “2,”
Criminal Case Nos. 14843-R for Serious Physical Injuries, Torralba
Cirse “Choy”; 17984-R, for Estafa; Torralba Cirse R. R-43035 for
Malicious Mischief. You will confirm that the same Cirse Torralba
and/or Choy Torralba and/or Cirse R. Torralba mentioned in this
certificate refer to your person?
A: Yes.
Q: Now, aside from these criminal cases in the Municipal Trial Courts
in Cities, in Cebu City, you also have 1, 2, 3,4, 5, 6, 7, 8, 9 criminal
cases before the Regional Trial Court of Cebu per certificate that I
marked as Exhibit “3.” Is that correct?
A: Yes, but all those cases have already been either acquitted or
dismissed. I will present the certification.
Q: Specifically, these cases has something to do with your character.
Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6th case for issuance
of a bouncing check, the 7th case is a case for issuance of a bouncing
check; and the 9th is also for issuance of a bouncing check. You will
confirm that?
....
COURT: (to witness)
Q: What happened to those cases?
105
A: I was acquitted your Honor. I was acquitted in all those cases, some
are dismissed, and fortunately, your Honor, I do not have any
conviction.
From the foregoing, it is clear that there was nothing untruthful about
what was published in the Sunday Post. The criminal cases listed in
the advertisement as pending against the complainant had indeed
been filed. It may have been inconvenient for the complainant that
these matters may have been divulged, yet such information hardly
falls within any realm of privacy complainant could invoke, since the
pendency of these criminal charges are actually matters of public
record.
The information, moreover, went into the very character and integrity
of complainant to which his listening public has a very legitimate
interest. Complainant hosts a public affairs program, one which he
himself claimed was imbued with public character since it deals with
“corruptions in government, corruptions by public officials,
irregularities in government in comrades.” By entering into this line of
work, complainant in effect gave the public a legitimate interest in his
life. He likewise gave them a stake in finding out if he himself had the
integrity and character to have the right to criticize others for their
conduct.
In convicting the defendants, the lower courts paid particular heed to
Article 354 of the Revised Penal Code, which provides that “every
defamatory imputation is presumed to be malicious, even if it be true,
if no good intention and justifiable motive for making it is shown. . .
.” We hold that this provision, as applied to public figures complaining
of criminal libel, must be construed in light of the constitutional
guarantee of free expression, and this Court’s precedents upholding
the standard of actual malice with the necessary implication that a
statement regarding a public figure if true is not libelous. The provision
itself allows for such leeway, accepting as a defense “good intention
and justifiable motive.” The exercise of free expression, and its
concordant assurance of commentary on public affairs and public
figures, certainly qualify as “justifiable motive,” if not “good intention.”
It cannot be helped if the commentary protected by the Bill of Rights
is accompanied by excessive color or innuendo. Certainly, persons in
possession of truthful facts are not obliged to present the same in
bland fashion. These true facts may be utilized to convince the
listener/reader against a particular position, or to even dissuade one
against accepting the credibility of a public figure. Dry facts, by
themselves, are hardly stirring. It is the commentary thereupon that
usually animates the discourse which is encouraged by the
Constitution as integral to the democratic way of life. This is replete in
many components of our daily life, such as political addresses,
televised debates, and even commercial advertisements.
As adverted earlier, the guarantee of free speech was enacted to
protect not only polite speech, but even expression in its most
unsophisticated form. Criminal libel stands as a necessary qualification
to any absolutist interpretation of the free speech clause, if only
because it prevents the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to
safeguard against fears that the public debate might be muted due to
the reckless enforcement of libel laws, truth has been sanctioned as a
defense, much more in the case when the statements in question
address public issues or involve public figures.
In ascertaining the degree of falsity that would constitute actual
malice, the Court, citing New York Times, has even gone so far as
acknowledging:
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors
or misstatements are inevitable in any scheme of truly free expression
and debate. Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be
some room for misstatement of fact as well as for misjudgment. Only
by giving them much leeway and tolerance can they courageously and
effectively function as critical agencies in our democracy. In Bulletin
Publishing Corp. v. Noel we held—
106
A newspaper especially one national in reach and coverage, should be Puno (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario,
free to report on events and developments in which the public has a JJ.,concur.
legitimate interest with minimum fear of being hauled to court by one
Petition granted, assailed decision and resolution reversed and set
group or another on criminal or civil charges for libel, so long as the
aside. Petitioner acquitted.
newspaper respects and keeps within the standards of morality and
civility prevailing within the general community. Note.—In libel, publication means making the defamatory matter,
after it is written, known to someone other than the person against
To avoid the self-censorship that would necessarily accompany strict
whom it has been written. (Novicio vs. Aggabao, 418 SCRA 138
liability for erroneous statements, rules governing liability for injury to
[2003])
reputation are required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same reason that the New ——o0o——
York Times doctrine requires that liability for defamation of a public
official or public figure may not be imposed in the absence of proof of
“actual malice” on the part of the person making the libelous
statement.

To this end, the publication of the subject advertisement by petitioner

and Lim cannot be deemed by this Court to have been done with
actual malice. Aside from the fact that the information contained in
said publication was true, the intention to let the public know the
character of their radio commentator can at best be subsumed under
the mantle of having been done with good motives and for justifiable
ends. The advertisement in question falls squarely within the bounds
of constitutionally protected expression under Section 4, Article III,
and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The

assailed Decision and Resolution of the Court of Appeals dated 29 July
1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413 are
REVERSED and SET ASIDE insofar as they affect petitioner. The
Decision of the Regional Trial Court of Cebu City, promulgated on 17
May 1994, as regards petitioner is likewise REVERSED and SET ASIDE
and petitioner is ACQUITTED of the charge of libel therein. No costs.

SO ORDERED.

107
 PHILIPPINE JOURNALISTS, INC. (PEOPLE’S JOURNAL),
ZACARIAS NUGUID, JR. and CRISTINA LEE, petitioners, vs.
FRANCIS THOENEN, respondent

G.R. No. 143372. December 13, 2005

Constitutional Law; Bill of Rights; Freedom of Speech; The freedom of

speech and press and assembly, first laid down by Pres. McKinley in
the Instruction to the Second Philippine Commission of 07 April 1900,
is an almost verbatim statement of the first amendment of the Bill of
Rights of the 1987 Constitution, it states, “No law shall be passed
abridging the freedom of speech, of expression, or the press, or the
right of the people to peaceably assemble and petition the government
for redress of grievances.”—The freedom of speech and of the press
is not absolute. The freedom of speech and press and assembly, first
laid down by President McKinley in the Instruction to the Second
Philippine Commission of 07 April 1900, is an almost verbatim
restatement of the first amendment of the Constitution of the United
States. Enshrined in Section 4, Article III of the Bill of Rights of the
1987 Constitution, it states, “No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress
of grievances.”

Same; Same; Same; There are certain well-defined and narrowly

limited classes of speech, the prevention and punishment of which has
never been thought to raise any Constitutional problem—these include
the lewd and obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. — But not all speech
is protected. “The right of free speech is not absolute at all times and
under all circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which has
never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or
‘fighting’ words—those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. It has been well

108
observed that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interest in order and morality.”
Criminal Law; Libel; Libel is not protected speech. — Article 353 of the
Revised Penal Code defines libel as “a public and malicious imputation
of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.”
Same; Same; For an imputation to be libelous, the following requisites
must be met: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice.—For an imputation to
be libelous, the following requisites must be met: (a) the allegation of
a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of
malice. In Vasquez v. Court of Appeals, we had occasion to further
explain. Thus: An allegation is considered defamatory if it ascribes to
a person the commission of a crime, the possession of a vice or defect,
real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in
contempt, or which tends to blacken the memory of one who is dead.
Same; Same; As a general rule, malice is presumed. — As a general
rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity.—Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and 2. A fair and true
report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in
said proceedings, or of any other act performed by public officers in
the exercise of their functions.
Same; Same; Privileged Communications; A privileged communication
may be either absolutely privileged or qualifiedly privileged.—The
demand to protect public opinion for the welfare of society and the
orderly administration of government inevitably lead to the adoption
of the doctrine of privileged communication. “A privileged
communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are
not actionable even if the author has acted in bad faith. An example
is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a
member of Congress from liability for any speech or debate in the
Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong
‘private communications’ and ‘fair and true report without any
comments or remarks.’” The appellate court correctly ruled that the
petitioners’ story is not privileged in character, for it is neither “private
communication” nor a fair and true report without any comments or
remarks.
Same; Same; Same; A communication made bona fide upon any
subject-matter in which the party communicating has an interest, or
in reference to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained
criminatory matter, which without this privilege would be slanderous
and actionable. — In US v. Bustos defined the concept of private
communication thus: “A communication made bona fide upon any
subject-matter in which the party communicating has an interest, or
in reference to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained
criminatory matter which without this privilege would be slanderous
and actionable. A pertinent illustration of the application of qualified
privilege is a complaint made in good faith and without malice in
109
regard to the character or conduct of a public official when addressed
to an officer or a board having some interest or duty in the matter.”
Same; Same; Same; In order that a discreditable imputation to a
public official may be actionable, it must either be a false allegation of
fact or a comment based on a false supposition. — In Borjal v. Court
of Appeals, we stated that “the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. We
stated that the doctrine of fair commentaries means “that while in
general every discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless,
when the discreditable imputation is directed against a public person
in his public capacity, it is not necessarily actionable. In order that
such discreditable imputation to a public official may be actionable, it
must either be a false allegation of fact or a comment based on a false
supposition.”
Same; Same; Same; The legitimate state interest underlying the law
of libel is the compensation of the individuals for the harm inflicted
upon them by defamatory falsehood. — The legitimate state interest
underlying the law of libel is the compensation of the individuals for
the harm inflicted upon them by defamatory falsehood. After all, the
individual’s right to protection of his own good name “reflects no more
than our basic concept of the essential dignity and worth of every
human being—a concept at the root of any decent system of ordered
liberty.”
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
De la Vega, Fajardo, Bondoc, Xenos & Ignacio Law Offices for
petitioners.
Arnold V. Guerrero Law Offices for respondent.
CHICO-NAZARIO, J.:
For almost a century, this Court has sought that elusive equilibrium
between the law on defamation on one hand, and the constitutionally
guaranteed freedoms of speech and press on the other. This case
revisits that search.
On 30 September 1990, the following news item appeared in the
People’s Journal, a tabloid of general circulation:
Swiss Shoots Neighbors’ Pets
RESIDENTS of a subdivision in Parañaque have asked the Bureau of
Immigration to deport a Swiss who allegedly shoots wayward
neighbors’ pets that he finds in his domain.
The BF Homes residents through lawyer Atty. Efren Angara
complained that the deportation of Francis Thoenen, of 10 Calcutta BF
Homes Phase III, could help “prevent the recurrence of such incident
in the future.”
Angara explained that house owners could not control their dogs and
cats when they slip out of their dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he
shot recently threatens to exacerbate the problem, Angara said.
Cristina Lee
The subject of this article, Francis Thoenen, is a retired engineer
permanently residing in this country with his Filipina wife and their
children. Claiming that the report was false and defamatory, and that
the petitioners acted irresponsibly in failing to verify the truth of the
same prior to publication, he filed a civil case for damages against
herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its
publisher, and reporter Cristina Lee.
Thoenen claimed that the article destroyed the respect and admiration
he enjoyed in the community, and that since it had been published,
110
he and his wife received several queries and angry calls from friends,
neighbors and relatives. For the impairment of his reputation and
standing in the community, and his mental anguish, Thoenen sought
P200,000.00 in moral damages, P100,000.00 in exemplary damages,
and P50,000.00 in attorney’s fees.
The petitioners admitted publication of the news item, ostensibly out
of a “social and moral duty to inform the public on matters of general
interest, promote the public good and protect the moral public (sic) of
the people,” and that the story was published in good faith and
without malice.
The principal source of the article was a letter by a certain Atty. Efren
Angara addressed to Commissioner Andrea Domingo of the
Commission on Immigration and Deportation (CID, now Bureau of
Immigration), which states:
Dear Madame:
We would like to request your office to verify the true status/
authenticity of the residency in the Philippines of a foreign national (a
Swiss) by the name of Francis Thoenen who is presently residing at
No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Parañaque,
Metro Manila. I received (sic) complaint from my clients residing
around his vicinity that this foreigner had (sic) been causing troubles
ever since he showed up. He is too meticulous and had (sic) been
shooting dogs and cats passing his house wall everytime.
Such act which (sic) is unacceptable to the owners especially if inspite
(sic) of control their pets slips (sic) out unnoticed. A confrontation
between him and the owner of the dog he shoot, (sic) already
occurred last time. In some instances this guy had been always driving
his car barbarously inside the subdivision with children playing around
(sic) the street. Before my clients petitioned themselves with the
endorsement of the Homeowners Association and filed to your office
for deportation we’re respectfully seeking your assistance to
investigate this alien to prevent further incident occurrence (sic) in the
future. He should not be allowed to dominate the citizens of this
country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news
events in the CID, acquired a copy of the above letter from a trusted
source in the CID’s Intelligence Division. They claimed to “have
reasonable grounds to believe in the truth and veracity of the
information derived (from their) sources.”
It was proven at trial that the news article contained several
inaccuracies. The headline, which categorically stated that the subject
of the article engaged in the practice of shooting pets, was untrue.
Moreover, it is immediately apparent from a comparison between the
above letter and the news item in question that while the letter is a
mere request for verification of Thoenen’s status, Lee wrote that
residents of BF Homes had “asked the Bureau of Immigration to
deport a Swiss who allegedly shoots neighbors’ pets.” No complaints
had in fact been lodged against him by any of the BF Homeowners,
nor had any pending deportation proceedings been initiated against
him in the Bureau of Immigration.
Thoenen also submitted a Certification from the Office of the Bar
Confidant that there was no lawyer in its rolls by the name of Efren
Angara, earlier cited by petitioner Lee as the author of the letter on
which she based her article. Finally, the trial also showed that despite
the fact that respondent’s address was indicated in the letter, Cristina
Lee made no efforts to contact either him or the purported letter-
writer, Atty. Angara.
The petitioners claim that Lee sought confirmation of the story from
the newspaper’s correspondent in Parañaque, who told her that a
woman who refused to identify herself confirmed that there had
indeed been an incident of pet-shooting in the neighborhood involving
111
the respondent. However, the correspondent in question was never
presented in court to verify the truth of this allegation.
Neither was the alleged CID source presented to verify that the above
letter had indeed come from the Department, nor even that the same
was a certified true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City,
rendered a Decision in favor of the petitioners, which reads in part:
“There is no malice on the part of the defendants in publishing the
news item done in the exercise of their profession as journalists
reporting to the people on matters of public interest. The news report
was based on an official communication filed with the Bureau of
Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No.
27086, September 30, 1991, which is similar to the present case:
While indeed, the news item subject of the present case might have
ruffled the sensitivities of plaintiff, this Court however believes that
the alleged defamatory articles falls within the purview of a qualifiedly
privileged matter, and that therefore, it cannot be presumed to be
malicious. The onus of proving malice is accordingly shifted to the
plaintiff, that is, that he must prove that the defendants were actuated
by ill-will in what they caused to be printed and published, with a
design to carelessly or wantonly injure the plaintiff. (US vs. Bustos, et
al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected
by the freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS.”
On appeal, the court a quo reversed the trial court. It held that
although freedom of expression and the right of speech and of the
press are among the most zealously guarded in the Constitution, still,
in the exercise of these rights, Article 19 of the Civil Code requires
everyone to “act with justice, give everyone his due, and observe
honesty and good faith.” The appellate court emphasized that
Thoenen was neither a public official nor a public figure, and thus,
“. . . [E]ven without malice on the part of defendants-appellees, the
news item published in the 30 September 1990 edition of People’s
Journal had been done in violation of the principle of abuse of right
under Article 19 of the Civil Code, in the absence of a bona fide effort
to ascertain the truth thereof, i.e., “to observe honesty and good
faith,” which makes their act a wrongful omission. Neither did they
“act with justice and give everyone his due,” because without
ascertaining the veracity of the information given them by the
Intelligence Bureau of the Bureau of Immigration, they published a
news article which they were aware would bring the person specifically
named therein, viz., Francis Thoenen, the plaintiff-appellant in this
case, into disrepute.
....
WHEREFORE, the foregoing considered, the Decision appealed from
is hereby REVERSED and SET ASIDE. In its stead, We find for the
appellant and award him moral damages of P200,000.00; exemplary
damages of P50,000.00, and legal fees to P30,000.00; all of which
shall be borne jointly and severally by appellees.”
Petitioners’ motion for reconsideration having been denied, this
petition for certiorari under Rule 45 of the 1997 Rules of Civil
Procedure was filed on the following grounds:
“1. The Court of Appeals erred in finding the petitioners Cristina Lee,
Nuguid and PJI liable under Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel
even if the article was based on a letter released by the Bureau of
Immigration, hence a qualified privilege communication.
112
3. The Court of Appeals erred in concluding that petitioners did not
ascertain the truth of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding
that the same was excessive unconscionable and devoid of any basis.”
The petitioners argue that this case is one for damages arising from
libel, and not one for abuse of rights under the New Civil Code. They
further claim the constitutional protections extended by the freedom
of speech and of the press clause of the 1987 Constitution against
liability for libel, claiming that the article was published in fulfillment
of its social and moral duty to inform the public “on matters of general
interest, promote the public good and protect the moral [fabric] of the
people.” They insist that the news article was based on a letter
released by the Bureau of Immigration, and is thus a qualifiedly
privileged communication. To recover damages, the respondent must
prove its publication was attended by actual malice—that is, with
knowledge that it was false or with reckless disregard of whether it
was false or not.
For the reasons stated below, we hold that the constitutional privilege
granted under the freedom of speech and the press against liability
for damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute.The freedom
of speech and press and assembly, first laid down by President
McKinley in the Instruction to the Second Philippine Commission of 07
April 1900, is an almost verbatim restatement of the first amendment
of the Constitution of the United States. Enshrined in Section 4, Article
III of the Bill of Rights of the 1987 Constitution, it states, “No law shall
be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition
the government for redress of grievances.”
But not all speech is protected. “The right of free speech is not
absolute at all times and under all circumstances. There are certain
well-defined and narrowly limited classes of speech, the prevention
and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or ‘fighting’ words—those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order
and morality.”
Libel is not protected speech. Article 353 of the Revised Penal Code
defines libel as “a public and malicious imputation of a crime, or of a
vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of
one who is dead.”
For an imputation to be libelous, the following requisites must be met:
(a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice. In Vasquez v. Court of Appeals,
we had occasion to further explain. Thus:
“An allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which
tends to blacken the memory of one who is dead.
There is publication if the material is communicated to a third person.
It is not required that the person defamed has read or heard about
the libelous remark. What is material is that a third person has read
or heard the libelous statement, for “a man’s reputation is the estimate
in which others hold him, not the good opinion which he has of
himself.”
113
On the other hand, to satisfy the element of identifiability, it must be
shown that at least a third person or a stranger was able to identify
him as the object of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal
Code provides:
Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or security duty; and
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions. (citations omitted,
emphasis supplied)
In this case, there is no controversy as to the existence of the three
elements. The respondent’s name and address were clearly indicated
in the article ascribing to him the questionable practice of shooting the
wayward pets of his neighbors. The backlash caused by the
publication of the article was in fact such that stones had been thrown
at their house, breaking several flower pots, and daily and nightly calls
compelled him to request a change of their telephone number. These
facts are not contested by the petitioners. What the petitioners claim
is the absence of proof of the fourth element—malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal
Code states:
“ART. 354. Requirement of Publicity.—Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.”
The article is not a privileged communication. We first discussed the
freedom of speech and press and assembly vis-à-vis the laws on libel
and slander in the ground-breaking case of US v. Bustos, where we
applied the prevailing English and American jurisprudence to the effect
that:
“The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment
on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and an unjust accusation;
the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment
upon his official acts. Only thus can the intelligence and dignity of the
individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as the individual is less than the State, so
must expected criticism be born for the common good? Rising superior
to any official, or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary—to any or all the agencies of
Government—public opinion should be the constant source of liberty
and democracy.” (citations omitted)
The demand to protect public opinion for the welfare of society and
the orderly administration of government inevitably lead to the
adoption of the doctrine of privileged communication. “A privileged
communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are
not actionable even if the author has acted in bad faith. An example
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is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a
member of Congress from liability for any speech or debate in the
Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong
‘private communications’ and ‘fair and true report without any
comments or remarks.’ ”
The appellate court correctly ruled that the petitioners’ story is not
privileged in character, for it is neither “private communication” nor a
fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: “A
communication made bona fide upon any subject-matter in which the
party communicating has an interest, or in reference to which he has
a duty, is privileged, if made to a person having a corresponding
interest or duty, although it contained criminatory matter which
without this privilege would be slanderous and actionable. A pertinent
illustration of the application of qualified privilege is a complaint made
in good faith and without malice in regard to the character or conduct
of a public official when addressed to an officer or a board having
some interest or duty in the matter.”
This defense is unavailing to petitioners. In Daez v. Court of Appeals
we held that:
“As a rule, it is the right and duty of a citizen to make a complaint of
any misconduct on the part of public officials, which comes to his
notice, to those charged with supervision over them. Such a
communication is qualifiedly privileged and the author is not guilty of
libel. The rule on privilege, however, imposes an additional
requirement. Such complaints should be addressed solely to some
official having jurisdiction to inquire into the charges, or power to
redress the grievance or has some duty to perform or interest in
connection therewith.” (emphasis supplied)
In the instant case, even if we assume that the letter written by the
spurious Atty. Angara is privileged communication, it lost its character
as such when the matter was published in the newspaper and
circulated among the general population. A written letter containing
libelous matter cannot be classified as privileged when it is published
and circulated in public, which was what the petitioners did in this
case.
Neither is the news item a fair and true report without any comments
or remarks of any judicial, legislative or other official proceedings;
there is in fact no proceeding to speak of. Nor is the article related to
any act performed by public officers in the exercise of their functions,
for it concerns only false imputations against Thoenen, a private
individual seeking a quiet life.
The petitioners also claim to have made the report out of a “social and
moral duty to inform the public on matters of general interest.”
In Borjal v. Court of Appeals, we stated that “the enumeration under
Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest
are likewise privileged. We stated that the doctrine of fair
commentaries means “that while in general every discreditable
imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public capacity, it
is not necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must either be a
false allegation of fact or a comment based on a false supposition.”
Again, this argument is unavailing to the petitioners. As we said, the
respondent is a private individual, and not a public official or public
figure. We are persuaded by the reasoning of the United States
Supreme Court in Gertz v. Robert Welch, Inc., that a newspaper or
broadcaster publishing defamatory falsehoods about an individual who
is neither a public official nor a public figure may not claim a
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constitutional privilege against liability, for injury inflicted, even if the
falsehood arose in a discussion of public interest.
Having established that the article cannot be considered as privileged
communication, malice is therefore presumed, and the fourth requisite
for the imputation of libel to attach to the petitioners in this case is
met. The news article is therefore defamatory and is not within the
realm of protected speech. There is no longer a need to discuss the
other assignment of errors, save for the amount of damages to which
respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc., we awarded
damages where the defendants deliberately presented a private
individual in a worse light that what she actually was, and where other
factual errors were not prevented although defendants had the means
to ascertain the veracity of their report. Such are the facts obtaining
here.
We must point out that Lee’s brief news item contained falsehoods on
two levels. On its face, her statement that residents of BF Homes had
“asked the Bureau of Immigration to deport a Swiss who allegedly
shoots neighbors’ pets” is patently untrue since the letter of the
spurious Atty. Angara was a mere request for verification of Thoenen’s
status as a foreign resident. Lee’s article, moreover, is also untrue, in
that the events she reported never happened. The respondent had
never shot any of his neighbors’ pets, no complaints had been lodged
against him by his neighbors, and no deportation proceedings had
been initiated against him. Worse, the author of Lee’s main source of
information, Atty. Efren Angara, apparently either does not exist, or is
not a lawyer. Petitioner Lee would have been enlightened on
substantially all these matters had she but tried to contact either
Angara or Thoenen.
Although it has been stressed that a newspaper “should not be held
to account to a point of suppression for honest mistakes, or
imperfection in the choice of words,” even the most liberal view of free
speech has never countenanced the publication of falsehoods,
especially the persistent and unmitigated dissemination of patent lies.
“There is no constitutional value in false statements of fact. Neither
the intentional lie nor the careless error materially advances society’s
interest in ‘uninhibited, robust, and wide-open’ debate.” The use of
the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which
economic, social, or political change is to be effected. Calculated
falsehood falls into that class of utterances which “are no essential
part of any exposition of ideas, and are of such slight social value as
a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality. . . The
knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy constitutional protection”
(citations omitted).
The legitimate state interest underlying the law of libel is the
compensation of the individuals for the harm inflicted upon them by
defamatory falsehood. After all, the individual’s right to protection of
his own good name “reflects no more than our basic concept of the
essential dignity and worth of every human being—a concept at the
root of any decent system of ordered liberty.”
The appellate court awarded Thoenen moral damages of P200,000.00,
exemplary damages of P50,000.00 and legal fees of P30,000.00, to be
borne jointly and severally by the herein petitioners. In Guevarra v.
Almario, we noted that the damages in a libel case must depend upon
the facts of the particular case and the sound discretion of the court,
although appellate courts were “more likely to reduce damages for
libel than to increase them.” So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000
reversing the Decision of the Regional Trial Court, Branch 62, Makati
City, of 31 August 1994 is hereby AFFIRMED, subject to the
modification that petitioners are ordered to pay, jointly and severally,
moral damages in the sum of P100,000.00, exemplary damages of
P30,000.00, and legal fees of P20,000.00. No costs.
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SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo, Sr. and Tinga, JJ.,
concur.
Judgment affirmed with modification.
Notes.—To be liable for libel, the following elements must be shown
to exist: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice. (Brillante vs. Court of
Appeals, 440 SCRA 541 [2004])
The purpose of affording protection to privileged communication is to
permit all interested persons or citizens with grievances to freely
communicate, with immunity, to the persons who could furnish the
protection asked for. (Ibid.)
Although wider latitude is given to defamatory utterances against
public officials in connection with or relevant to their performance of
official duties, or against public figures in relation to matters of public
interest involving them, such defamatory utterances do not
automatically fall within the ambit of constitutionally protected speech.
(Id.)
The utterances are false, malicious or unrelated to a public officer’s
performance of his duties, the same may give rise to criminal and civil
liability. (Id.)
——o0o——
WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE
ORTUOSTE AND JOVENCIO PERECHE, SR., petitioners, vs.
REGIONAL TRIAL COURT OF MAKATI, BRANCH 149, and
JESSIE JOHN P. GIMENEZ, respondents
G.R. No. 184800. May 5, 2010
Criminal Law; Venue; Jurisdiction; Libel; Venue is jurisdictional in
criminal actions such that the place where the crime was committed
determines not only the venue of the action but constitutes an
essential element of jurisdiction. This principle acquires even greater
import in libel cases, given that Article 360, as amended, specifically
provides for the possible venue for the institution of the criminal and
civil aspects of such cases. — Venue is jurisdictional in criminal actions
such that the place where the crime was committed determines not
only the venue of the action but constitutes an essential element of
jurisdiction. This principle acquires even greater import in libel cases,
given that Article 360, as amended, specifically provides for the
possible venues for the institution of the criminal and civil aspects of
such cases.
Same; Same; Same; Same; Venue of libel cases where the complaint
is a private individual is limited to only either of two places, namely:
1) where the complainant actually resides at the time of the
commission of the offense; or 2) where the alleged defamatory article
was printed and first published.—It becomes clear that the venue of
libel cases where the complainant is a private individual is limited to
only either of two places, namely: 1) where the complainant actually
resides at the time of the commission of the offense; or 2) where the
alleged defamatory article was printed and first published. The
Amended Information in the present case opted to lay the venue by
availing of the second. Thus, it stated that the offending article “was
first published and accessed by the private complainant in Makati
City.” In other words, it considered the phrase to be equivalent to the
requisite allegation of printing and first publication.
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Same; Same; Same; Same; If the circumstances as to where the libel
was printed and first published are used by the offended party as basis
for the venue in criminal action, the Information must allege with
particularity where the defamatory article was printed and first
published, as evidence or supported by, for instance, the address of
their editorial or business offices in the case of newspaper, magazines
or serial publications.—If the circumstances as to where the libel was
printed and first published are used by the offended party as basis for
the venue in the criminal action, the Information must allege with
particularity where the defamatory article was printed and first
published, as evidenced or supported by, for instance, the address of
their editorial or business offices in the case of newspapers, magazines
or serial publications. This pre-condition becomes necessary in order
to forestall any inclination to harass.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Solis, Medina, Limpingco & Fajardo for petitioners.
Poblador, Bautista & Reyes for private respondent.
CARPIO-MORALES, J.:
Via a petition for Certiorari and Prohibition, petitioners Wonina M.
Bonifacio, et al. assail the issuances of Branch 149 of the Regional
Trial Court (RTC) of Makati (public respondent)—Order of April 22,
2008 which denied their motion to quash the Amended Information
indicting them for libel, and Joint Resolution of August 12, 2008
denying reconsideration of the first issuance.
Private respondent Jessie John P. Gimenez (Gimenez) filed on October
18, 2005, on behalf of the Yuchengco Family (“in particular,” former
Ambassador Alfonso Yuchengco and Helen Y. Dee (Helen) and of the
Malayan Insurance Co., Inc. (Malayan), a criminal complaint, before
the Makati City Prosecutor’s Office, for thirteen (13) counts of libel
under Article 355 in relation to Article 353 of the Revised Penal Code
(RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova
Santos, who are officers of Parents Enabling Parents Coalition, Inc.
(PEPCI), John Joseph Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda
Pareja, Wonina Bonifacio, Elvira Cruz, Cornelio Zafra, Vicente
Ortueste, Victoria Gomez Jacinto, Jurencio Pereche, Ricardo Loyares
and Peter Suchianco, who are trustees of PEPCI, Trennie Monsod, a
member of PEPCI (collectively, the accused), and a certain John Doe,
the administrator of the website www.pepcoalition.com.
PEPCI appears to have been formed by a large group of disgruntled
planholders of Pacific Plans, Inc. (PPI)—a wholly owned subsidiary of
Great Pacific Life Assurance Corporation, also owned by the
Yuchengco Group of Companies (YGC)— who had previously
purchased traditional pre-need educational plans but were unable to
collect thereon or avail of the benefits thereunder after PPI, due to
liquidity concerns, filed for corporate rehabilitation with prayer for
suspension of payments before the Makati RTC.
Decrying PPI’s refusal/inability to honor its obligations under the
educational pre-need plans, PEPCI sought to provide a forum by which
the planholders could seek redress for their pecuniary loss under their
policies by maintaining a website on the internet under the address of
www.pepcoalition.com.
Gimenez alleged that PEPCI also owned, controlled and moderated on
the internet a blogspot6 under the website address
www.pacificnoplan.blogspot.com, as well as a
yahooegroupatno2pep2010@yahoogroups.com.These websites are
easily accessible to the public or by anyone logged on to the internet.
Gimenez further alleged that upon accessing the above-stated
websites in Makati on various dates from August 25 to October 2,
2005, he “was appalled to read numerous articles [numbering 13],
maliciously and recklessly caused to be published by [the accused]
containing highly derogatory statements and false accusations,
relentlessly attacking the Yuchengco Family, YGC, and particularly,
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Malayan.” He cited an article which was posted/published on
www.pepcoalition.
com on August 25, 2005 which stated:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na
ang mga kinatatakutan kong pagbagsak ng negotiation because it was
done prematurely since we had not file any criminal aspect of our
case. What is worse is that Yuchengcos benefited much from the nego.
x x x. That is the fact na talagang hindi dapat pagtiwalaan ang mga
Yuchengcos.
LET’S MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN
COURT, BSP AND AMLC AND WHEREVER. Pumunta tayong muli sa
senado, congreso, RCBC Plaza, and other venues to air our grievances
and call for boycott ng YGC. Let us start within ourselves. Alisin natin
ang mga investments and deposits natin sa lahat ng YGC and I mean
lahat and again convince friends to do the same. Yung mga nanonood
lang noon ay dapat makisali na talaga ngayon specially those who
joined only after knowing that there was a negotiation for amicable
settlements.
FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE
READY FOR IT BECAUSE THEY HAD SUCCESSFULLY LULL US AND
THE NEXT TIME THEY WILL TRY TO KILL US NA. x x x” (emphasis in
the original)
By Resolution of May 5, 2006, the Makati City Prosecutor’s Office,
finding probable cause to indict the accused, filed thirteen (13)
separate Informations charging them with libel. The accusatory
portion of one Information, docketed as Criminal Case No. 06-876,
which was raffled off to public respondent reads:
“That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable
Court, the above-named accused, being then the trustees of Parents
Enabling Parents Coalition and as such trustees they hold the legal
title to the website www.pepcoalition.com which is of general
circulation, and publication to the public conspiring, confederating and
mutually helping with one another together with John Does, did then
and there willfully, unlawfully and feloniously and publicly and
maliciously with intention of attacking the honesty, virtue, honor and
integrity, character and reputation of complainant Malayan Insurance
Co., Inc., Yuchengco Family particularly Ambassador Alfonso
Yuchengco and Helen Dee and for further purpose exposing the
complainant to public hatred and contempt published an article
imputing a vice or defect to the complainant and caused to be
composed, posted and published in the said website
www.pepcoalition.com and injurious and defamatory article as
follows:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na
ang mga kinatatakutan kong pagbagsak ng negotiation. x x x x x x x
xx
For sure may tactics pa silang nakabasta sa atin. Let us be ready for
it because they had successfully lull us and the next time they will try
to kill us na. x x x
A copy of the full text of the foregoing article as published/posted in
www.pepcoalition.com is attached as Annex “F” of the complaint.
That the keyword and password to be used in order to post and
publish the above defamatory article are known to the accused as
trustees holding legal title to the above-cited website and that the
accused are the ones responsible for the posting and publication of
the defamatory articles that the article in question was posted and
published with the object of the discrediting and ridiculing the
complainant before the public.
CONTRARY TO LAW.”
Several of the accused appealed the Makati City Prosecutor’s
Resolution by a petition for review to the Secretary of Justice who, by
Resolution of June 20, 2007, reversed the finding of probable cause
and accordingly directed the withdrawal of the Informations for libel
119
filed in court. The Justice Secretary opined that the crime of “internet
libel” was non-existent, hence, the accused could not be charged with
libel under Article 353 of the RPC.
Petitioners, as co-accused, thereupon filed on June 6, 2006, before
the public respondent, a Motion to Quash the Information in Criminal
Case No. 06-876 on the grounds that it failed to vest jurisdiction on
the Makati RTC; the acts complained of in the Information are not
punishable by law since internet libel is not covered by Article 353 of
the RPC; and the Information is fatally defective for failure to
designate the offense charged and the acts or omissions complained
of as constituting the offense of libel.
Citing Macasaet v. People, petitioners maintained that the Information
failed to allege a particular place within the trial court’s jurisdiction
where the subject article was printed and first published or that the
offended parties resided in Makati at the time the alleged defamatory
material was printed and first published.
By Order of October 3, 2006, the public respondent, albeit finding that
probable cause existed, quashed the Information, citing Agustin v.
Pamintuan. It found that the Information lacked any allegations that
the offended parties were actually residing in Makati at the time of the
commission of the offense as in fact they listed their address in the
complaint-affidavit at Yuchengco Tower in Binondo, Manila; or that
the alleged libelous article was printed and first published in Makati.
The prosecution moved to reconsider the quashal of the Information,
insisting that the Information sufficiently conferred jurisdiction on the
public respondent. It cited Banal III v. Panganiban which held that the
Information need not allege verbatim that the libelous publication was
“printed and first published” in the appropriate venue. And it pointed
out that Malayan has an office in Makati of which Helen is a resident.
Moreover, the prosecution alleged that even assuming that the
Information was deficient, it merely needed a formal amendment.
Petitioners opposed the prosecution’s motion for reconsideration,
contending, inter alia, that since venue is jurisdictional in criminal
cases, any defect in an information for libel pertaining to jurisdiction
is not a mere matter of form that may be cured by amendment.
By Order of March 8, 2007, the public respondent granted the
prosecution’s motion for reconsideration and accordingly ordered the
public prosecutor to “amend the Information to cure the defect of
want of venue.” The prosecution thereupon moved to admit the
Amended Information dated March 20, 2007, the accusatory portion
of which reads:
“That on or about the 25th day of August 2005 in Makati City, Metro
Manila, Philippines, a place within the jurisdiction of the Honorable
Court, the above-named accused, being then the trustees of Parents
Enabling Parents Coalition and as such trustees they hold the legal
title to the website www.pepcoalition.com which is of general
circulation, and publication to the public conspiring, confederating
together with John Does, whose true names, identities and present
whereabouts are still unknown and all of them mutually helping and
aiding one another, did then and there willfully, unlawfully and
feloniously and publicly and maliciously with intention of attacking the
honesty, virtue, honor and integrity, character and reputation of
complainant Malayan Insurance Co. Inc., Yuchengco Family
particularly Ambassador Alfonso Yuchengco and Helen Dee and for
further purpose exposing the complainant to public hatred and
contempt published an article imputing a vice or defect to the
complainant and caused to be composed, posted and published in the
said website www.pepcoalition.com, a website accessible in Makati
City, an injurious and defamatory article, which was first published
and accessed by the private complainant in Makati City, as follows:
x x x x” (emphasis and underscoring in the original; italics supplied)
Petitioners moved to quash the Amended Information which, they
alleged, still failed to vest jurisdiction upon the public respondent
because it failed to allege that the libelous articles were “printed and
120
first published” by the accused in Makati; and the prosecution
erroneously laid the venue of the case in the place where the offended
party accessed the internet-published article.
By the assailed Order of April 22, 2008, the public respondent,
applying Banal III, found the Amended Information to be sufficient in
form.
Petitioners’ motion for reconsideration having been denied by the
public respondent by Joint Resolution of August 12, 2008, they filed
the present petition for Certiorari and Prohibition faulting the public
respondent for:
1. …NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION
ARE NOT PUNISHABLE BY LAW;
2. …ADMITTING AN AMENDED INFORMATION WHOSE
JURISDICTIONAL ALLEGATIONS CONTINUES TO BE DEFICIENT; and
3. …NOT RULING THAT AN AMENDMENT IN THE INFORMATION
FOR THE PURPOSE OF CURING JURISDICTIONAL DEFECTS IS
ILLEGAL.
With the filing of Gimenez’s Comment to the petition, the issues are:
(1) whether petitioners violated the rule on hierarchy of courts to thus
render the petition dismissible; and (2) whether grave abuse of
discretion attended the public respondent’s admission of the Amended
Information.
The established policy of strict observance of the judicial hierarchy of
courts, as a rule, requires that recourse must first be made to the
lower-ranked court exercising concurrent jurisdiction with a higher
court. A regard for judicial hierarchy clearly indicates that petitions for
the issuance of extraordinary writs against first level courts should be
filed in the RTC and those against the latter should be filed in the
Court of Appeals. The rule is not iron-clad, however, as it admits of
certain exceptions.
Thus, a strict application of the rule is unnecessary when cases
brought before the appellate courts do not involve factual but purely
legal questions.
In the present case, the substantive issue calls for the Court’s exercise
of its discretionary authority, by way of exception, in order to
abbreviate the review process as petitioners raise a pure question of
law involving jurisdiction in criminal complaints for libel under Article
360 of the RPC—whether the Amended Information is sufficient to
sustain a charge for written defamation in light of the requirements
under Article 360 of the RPC, as amended by Republic Act (RA) No.
4363, reading:
“Art. 360. Persons responsible.—Any person who shall publish,
exhibit or cause the publication or exhibition of any defamation in
writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business
manager of a daily newspaper, magazine or serial publication, shall be
responsible for the defamations contained therein to the same extent
as if he were the author thereof.
The criminal action and civil action for damages in cases of written
defamations, as provided for in this chapter shall be filed
simultaneously or separately with the Court of First Instance of the
province or city where the libelous article is printed and first published
or where any of the offended parties actually resides at the time of
the commission of the offense: Provided, however, That where one of
the offended parties is a public officer whose office is in the City of
Manila at the time of the commission of the offense, the action shall
be filed in the Court of First Instance of the City of Manila or of the
city or province where the libelous article is printed and first published,
and in case such public officer does not hold office in the City of
Manila, the action shall be filed in the Court of First Instance of the
province or city where he held office at the time of the commission of
the offense or where the libelous article is printed and first published
and in case one of the offended parties is a private individual, the
121
action shall be filed in the Court of First Instance of the province or
city where he actually resides at the time of the commission of the
offense or where the libelous matter is printed and first published x x
x.” (emphasis and underscoring supplied)
Venue is jurisdictional in criminal actions such that the place where
the crime was committed determines not only the venue of the action
but constitutes an essential element of jurisdiction. This principle
acquires even greater import in libel cases, given that Article 360, as
amended, specifically provides for the possible venues for the
institution of the criminal and civil aspects of such cases.
In Macasaet, the Court reiterated its earlier pronouncements in
Agbayani v. Sayo which laid out the rules on venue in libel cases, viz:
“For the guidance, therefore, of both the bench and the bar, this Court
finds it appropriate to reiterate our earlier pronouncement in the case
of Agbayani, to wit:
In order to obviate controversies as to the venue of the criminal action
for written defamation, the complaint or information should contain
allegations as to whether, at the time the offense was committed, the
offended party was a public officer or a private individual and where
he was actually residing at that time. Whenever possible, the place
where the written defamation was printed and first published should
likewise be alleged. That allegation would be a sine qua non if the
circumstance as to where the libel was printed and first published is
used as the basis of the venue of the action. (emphasis and
underscoring supplied)
It becomes clear that the venue of libel cases where the complainant
is a private individual is limited to only either of two places, namely:
1) where the complainant actually resides at the time of the
commission of the offense; or 2) where the alleged defamatory article
was printed and first published. The Amended Information in the
present case opted to lay the venue by availing of the second. Thus,
it stated that the offending article “was first published and accessed
by the private complainant in Makati City.” In other words, it
considered the phrase to be equivalent to the requisite allegation of
printing and first publication.
The insufficiency of the allegations in the Amended Information to vest
jurisdiction in Makati becomes pronounced upon an examination of
the rationale for the amendment to Article 360 by RA No. 4363.
Chavez v. Court of Appeals explained the nature of these changes:
Agbayani supplies a comprehensive restatement of the rules of venue
in actions for criminal libel, following the amendment by Rep. Act No.
4363 of the Revised Penal Code:
“Article 360 in its original form provided that the venue of the criminal
and civil actions for written defamations is the province wherein the
libel was published, displayed or exhibited, regardless of the place
where the same was written, printed or composed. Article 360
originally did not specify the public officers and the courts that may
conduct the preliminary investigation of complaints for libel.
Before article 360 was amended, the rule was that a criminal action
for libel may be instituted in any jurisdiction where the libelous article
was published or circulated, irrespective of where it was written or
printed (People v. Borja, 43 Phil. 618). Under that rule, the criminal
action is transitory and the injured party has a choice of venue.
Experience had shown that under that old rule the offended party
could harass the accused in a libel case by laying the venue of the
criminal action in a remote or distant place.
Thus, in connection with an article published in the Daily Mirror and
the Philippine Free Press, Pio Pedrosa, Manuel V. Villareal and Joaquin
Roces were charged with libel in the justice of the peace court of San
Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil. 933).
To forestall such harassment, Republic Act No. 4363 was enacted. It
lays down specific rules as to the venue of the criminal action so as to
prevent the offended party in written defamation cases from
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inconveniencing the accused by means of out-of-town libel suits,
meaning complaints filed in remote municipal courts (Explanatory
Note for the bill which became Republic Act No. 4363, Congressional
Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May
31, 1971, 39 SCRA 303, 311).
x x x x” (emphasis and underscoring supplied)
Clearly, the evil sought to be prevented by the amendment to Article
360 was the indiscriminate or arbitrary laying of the venue in libel
cases in distant, isolated or far-flung areas, meant to accomplish
nothing more than harass or intimidate an accused. The disparity or
unevenness of the situation becomes even more acute where the
offended party is a person of sufficient means or possesses influence,
and is motivated by spite or the need for revenge.
If the circumstances as to where the libel was printed and first
published are used by the offended party as basis for the venue in the
criminal action, the Information must allege with particularity where
the defamatory article was printed and first published, as evidenced
or supported by, for instance, the address of their editorial or business
offices in the case of newspapers, magazines or serial publications.
This pre-condition becomes necessary in order to forestall any
inclination to harass.
The same measure cannot be reasonably expected when it pertains
to defamatory material appearing on a website on the internet as
there would be no way of determining the situs of its printing and first
publication. To credit Gimenez’s premise of equating his first access
to the defamatory article on petitioners’ website in Makati with
“printing and first publication” would spawn the very ills that the
amendment to Article 360 of the RPC sought to discourage and
prevent. It hardly requires much imagination to see the chaos that
would ensue in situations where the website’s author or writer, a
blogger or anyone who posts messages therein could be sued for libel
anywhere in the Philippines that the private complainant may have
allegedly accessed the offending website.
For the Court to hold that the Amended Information sufficiently vested
jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit
being filed in all other locations where the pepcoalition website is
likewise accessed or capable of being accessed.
Respecting the contention that the venue requirements imposed by
Article 360, as amended, are unduly oppressive, the Court’s
pronouncements in Chavez are instructive:
“For us to grant the present petition, it would be necessary to abandon
the Agbayani rule providing that a private person must file the
complaint for libel either in the place of printing and first publication,
or at the complainant’s place of residence. We would also have to
abandon the subsequent cases that reiterate this rule in Agbayani,
such as Soriano, Agustin, and Macasaet. There is no convincing reason
to resort to such a radical action. These limitations imposed on libel
actions filed by private persons are hardly onerous, especially as they
still allow such persons to file the civil or criminal complaint in their
respective places of residence, in which situation there is no need to
embark on a quest to determine with precision where the libelous
matter was printed and first published.”
(Emphasis and underscoring supplied.)
IN FINE, the public respondent committed grave abuse of discretion
in denying petitioners’ motion to quash the Amended Information.
WHEREFORE, the petition is GRANTED. The assailed Order of April 22,
2008 and the Joint Resolution of August 12, 2008 are hereby SET
ASIDE. The Regional Trial Court of Makati City, Br. 149 is hereby
DIRECTED TO QUASH the Amended Information in Criminal Case No.
06-876 and DISMISS the case.
SO ORDERED.
Puno (C.J., Chairperson), Leonardo-De Castro, Bersamin and
Villarama, Jr., JJ., concur.
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Petition granted, order and joint resolution set aside. Bonifacio vs. SUPREME COURT OF THE PHILIPPINES
Regional Trial Court of Makati, Branch 149, 620 SCRA 268, G.R. No.
FIRST DIVISION
184800<br/> May 5, 2010
A.C. No. 11394, December 01, 2016
——o0o——
MARIA VICTORIA G. BELO-HENARES, Complainant, v. ATTY.
ROBERTO "ARGEE" C. GUEVARRA, Respondent.

DECISION

PERLAS-BERNABE, J.:

The instant administrative case arose from a verified complaint1 for

disbarment filed by complainant Maria Victoria G. Belo-Henares
(complainant) against respondent Atty. Roberto "Argee" C. Guevarra
(respondent) for alleged violations of Rules 1.01 and 1.02, Canon 1;
Rule 7.03, Canon 7; Rule 8.01 of Canon 8; and Rule 19.01, Canon 19
of the Code of Professional Responsibility.

The Facts

Complainant is the Medical Director and principal stockholder of the

Belo Medical Group, Inc. (BMGI), a corporation duly organized and
existing under Philippine laws and engaged in the specialized field of
cosmetic surgery. On the other hand, respondent is the lawyer of a
certain Ms. Josefina "Josie" Norcio (Norcio), who filed criminal cases
against complainant for an allegedly botched surgical procedure on
her buttocks in 2002 and 2005, purportedly causing infection and
making her ill in 2009.

In 2009, respondent wrote a series of posts on his Facebook account,

a popular online social networking site, insulting and verbally abusing
complainant. His posts include the following excerpts:

Argee Guevarra Quack Doctor Becky Belo: I am out to

get Puwitic Justice here! Kiss My Client's Ass, Belo. Senator
Adel Tamano, don't kiss Belo's ass. Guys and girls, nagiisip na
akong tumakbo sa Hanghalan 2010 to Kick some ass!!! I will launch a

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national campaign against Plastic Politicians No guns, No goons, No magdemanda sa kanila :) Ikot-ikot daw ang mga P.R. ni Belo
gold - IN GUTS I TRUST! trying to convince editors to pin me down with something eh
alam ko na wala naman akong sex video!!! Adik talaga
Argee Guevarra Dr. Vicki Belo, watch out for Josefina Norcio's Big
sa botox si Aling Becky at may tama na sa utak - eh kung
Bang on Friday - You will go down in Medical History as a
gagastos ka lang ng 10 milyon para sa tirang-pikon laban sa
QUACK DOCTOR!!!! QUACK QUACK QUACK QUACK. CNN, FOX
akin at to protect your burak na reputasyon as a plastic
NEWS, BLOOMBERG, CHICAGO TRIBUNE, L.A. TIMES c/o my partner
surgeon, i-donate mo na lang yon sa biktima ni Ondoy,
in the U.S., Atty. Trixie Cruz-Angeles :) (September 22 at 11:18pm)
Pepeng at Ramil! Yung mga homeboys ko sa Pasig na nilimas
Argee Guevarra is amused by a libel case filed by Vicki Belo against [ni]Ondoy ang kukubra sa yo! (October 23 at 5:31pm)
me through her office receptionist in Taytay Rizal. Haaaaay, style-
Argee Guevarra is inspired by Jose Norio's courageous act of showing
bulok at style-duwag talaga. Lalakarin ng Reyna ng
her face on national television to expose the Reyna ng Kaplastikan,
Kaplastikan at Reyna ng Payola ang kaso... si Imelda
Reyna ng Kapalpakan. Inspired by shock nevertheless by the fact
Marcos nga sued me for P300 million pesos and ended up apologizing
that the much needed partial restoration of her behind would cost a
to me, si Belo pa kaya? (September 15 at 12:08pm)
staggering $500,000-$1,000,000 Stanford Medical Hospital and she
Argee Guevarra get vicki belo as your client!!! may 'extra-legal' will still remain permanently disabled for the rest of her life... (July 11
budget yon. Kaya lang, histado ko na kung sino-sino ang at 2:08am)
tumatanggap eh, pag nalaman mo, baka bumagsak pa isang
Argee Guevarra Just got my internet connection. WILL EMAIL U THE
ahensya ng gobyerno dito, hahaha (August 9 at 10:31pm) Argee
LURID UNASSAILABLE FACTS ABOUT VICKI BELO'S QUACK
Guevarra
DOCTORING. (October 27, 2009)
ATTENTION MGA BATCHMATES SA DOJ: TIMBREHAN NIYO AKO Argee Guevarra yeah... actually the issue is simple and you will easily
KUNG MAGKANONG PANGSUHOL NI BELO PARA MADIIN AKO
see which side you'll be taking- just pay Ms. Josie Norcio a visit at St.
HA???? I just [want] to know how much she hates me,
Luke's at talagang binaboy siya ng Reyna ng Kaplastikan (July
ok? Ang payola budget daw niya runs into tens of millions....
10 at 12:08am)
(September 15 at 3:57pm)
The complaint further alleged that respondent posted remarks on his
Argee Guevarra thinks aloud how the payola machinery of vicki
Facebook account that were intended to destroy and ruin BMGI's
belo killed the news of a picket demonstration in front of the medical personnel, as well as the entire medical practice of around
Belo clinic. I wonder how television, print[,] and radio programs can
300 employees for no fair or justifiable cause, to wit
kill the story when the next rallies will have the following numbers
100, 200, 500 and 1000. Kung magkaasaran pa, 10,000 Argee Guevarra yup... [I'll] even throw the kitchen sink at her.
demonstrators will be assembled in front of the Belo Medical Clinic at Enjoy nga ito, we will paralyze the operations of all her clinic
Tomas Morato on July 27, 2009. Hahahahaha! (July 17 at 7:56pm) and seek out her patients and customers to boycott her. [So]
far, good response – 70% decrease in her July sales... (August 9 at
Argee Guevarra Nakakatawa nga, 10milyon pa budget... [I] didn't
10:29pm)
know that my reputation is worth that much. Aba ako kaya

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Argee Guevarra Guys, pandemonium has broken loose in [BMGI's] 6
clinics after Ms. Josie Norio's tell-all. With only 2 surgeons of BMGI
certified by PAPRAS, there is real-and-present danger that surgeries
like liposuction, nose lift, boob jobs which have been performed by
[BMGI's] physicians, every patient runs the risk of something going
wrong with the procedures they have undergone under [BMGI's]
hands:(" (July 12 at 12:21am)
Argee Guevarra [T]hey perform plastic surgery procedures without
licensed and trained doctors, they nearly killed a client of mine,
medical malpractice, use of banned substances/fillers on patients. just
recently, in flawless clinic, a patient who had a simple facial landed in
the hospital ... (August 9 at 10:04pm)
Argee Guevarra braces for typhoon Ramil without forgetting to ask
comrades and friends in Cebu to greet Vicki Belo with a boycott once
she visits there on Oct. 20. Cebu's royal set already knows that she
is not a certified plastic surgeon: Boycott Belo, Flawless
Reckless, Belat Essentials!!!! (October 18 at 6:23pm)
Argee Guevarra [W]ell, with all the kababuyan of the Belo clinic,
its money-making machines, dapat convert them into public
health clinics!!! instead of pandering to the vanities of those who
want to look like Dra. Belo. (July 11 at 2:16am)
Argee Guevarra darling kellyn, so far, i have 3 other ex-belo patients
who will tell all too!!!!! Grabe pala ang mga kapalpakan niyan. So
did u leave Belo Clinic because it has become a Frankenstein
Factory? (July 11 at 2:30am)
Argee Guevarra BOYCOTT BELO! FLAWLESS RECKLESS! BELAT
ESSENTIALS!!! I'll be gone for a week to a place where there will be
no facebook so please, add Trixie Cruz-Angeles if you want to find out
more about our anti-quack doctor campaign! (September 24 at
3:00pm)
Argee Guevarra Anyone care to sponsor T-shirts bearing this slogan?
- BOYCOTT BELO! FLAWLESS RECKLESS! BELAT
ESSENTIALS! (September 23 at 12:17arn)
Argee Guevarra Pare, eksena on Thursday I will go to the hearing with
a placard - BOYCOTT BELO!!! FLAWLESS RECKLESS!!! BELAT
ESSENTIALS!!! I will vote for Adel Tamano (La Salle-Ateneo lower
batch sa akin at mabuti ang pamilya niyan)... BUT WOULD YOU???
(September 23 at 1:50am)
Argee Guevarra advocates a national patients' boycott of the Belo
Medical Group. To all my friends and comrades, please stay away
from Belo's clinics. I have 2 cousins and 3 friends already who have
canceled their lipo from belo. Please help me shut down the Belo
Medical Group until they perform their moral and legal
obligation to Ms. Josie Norcio... (July 17 at 2:12pm)
Moreover, respondent, through his Facebook account, posted remarks
that allegedly threatened complainant with criminal conviction,
without factual basis and without proof, as follows:
Argee Guevarra Mr. Jay, by next year- GMA will no longer be president
and she will be jailed for plunder; Vicky Belo will no longer be a
doctor and she will be in the middle of a criminal
prosecution. The General Surgeon of France will have a Philippine
version. By October and November, some congressmen I have spoken
with will be issuing summons to Vicky Belo for a congressional inquiry;
the subject - legislation regulating the practice of cosmetic surgery!
(September 22 at 11:31pm)
Argee Guevarra Celso de1os Angeles can still get medical attention in
prison - from Vicky Belo after she gets convicted too for
criminal negligence and estafa (July 15 at 10:05am)
Argee Guevarra is preparing himself for a campaign against the
Belo Medical Group for its criminal negligence which nearly
killed Ms. Josie Norcio over a botched butt augmentation
procedure. He found out that the Dr. Belo herself marketed the
product to Ms. Norcio, the operation was carried out by her doctors
126
who were not licensed by the Philippine Association of Plastic
Reconstructive and Aesthetic Surgeons.............. (July 9 at 8:54pm)
Complainant likewise averred that some of respondent's Facebook
posts were sexist, vulgar, and disrespectful of women, to wit:
Argee Guevarra but can u help me too with maricar reyes? who's the
hottest cebuana chic chick there nowadays? haven't been there for
quite some time... pa-chicks ka naman!!! I'm sure marami kang 25-
and-below naprends diyan (August 10 at 8:36pm)
Argee Guevarra hay joseph!!! how's the gayest lawyer in cebu? our
forces will soon picket the belo clinic there, can u tell me where that
is? halato ko na sayo si hayden, promise!" (August 10 at
12:23am)
Argee Guevarra joseph, i can't say i love u too - baka belo's team will
use all sorts of attacks na against me. to thwart them, being the gayest
gay in the philippines, can u issue a certification that i am so not like
your type? at yung preferred ko lang
aythin, thalino and thisay? (September 23 at 12:01am)
Finally, complainant averred that the attacks against her were made
with the object to extort money from her, as apparent from the
following reply made by respondent on a comment on his Facebook
post:33chanroblesvirtuallawlibrary
Kellyn Conde Sy utang mo! Pay up time:) (July 11 at 2:37am)
Argee Guevarra kellyn, sisingilin ko muna si belo... at saka sabi mo
naman, maibagsak ko lang ang kaplastikan ni belo, quits na tayo
...(July 11 at 2:38am)
Asserting that the said posts, written in vulgar and obscene language,
were designed to inspire public hatred, destroy her reputation, and to
close BMGI and all its clinics, as well as to extort the amount of P200
Million from her as evident from his demand letter35 dated August 26,
2009, complainant lodged the instant complaint for disbarment
against respondent before the Integrated Bar of the Philippines (IBP),
docketed as CBD Case No. 09-2551.
In defense, respondent claimed that the complaint was filed in
violation of his constitutionally-guaranteed right to privacy, asserting
that the posts quoted by complainant were private remarks on his
private account on Facebook, meant to be shared only with his circle
of friends of which complainant was not a part. He also averred that
he wrote the posts in the exercise of his freedom of speech, and
contended that the complaint was filed to derail the criminal cases that
his client, Norcio, had filed against complainant. He denied that the
remarks were vulgar and obscene, and that he made them in order to
inspire public hatred against complainant. He likewise denied that he
attempted to extort money from her, explaining that he sent the
demand letter as a requirement prior to the filing of the criminal case
for estafa, as well as the civil case for damages against her. Finally,
respondent pointed out that complainant was a public figure who is,
therefore, the subject of fair comment.
After the mandatory conference had been terminated, the parties
were directed to file their respective position papers. Thereafter, the
IBP, through the Commission on Bar Discipline (CBD), set the case for
clarificatory hearing. Upon termination thereof, the case was deemed
submitted for report/recommendation.
IBP's Report and Recommendation
In its Report and Recommendation dated August 13, 2013, the IBP-
CBD recommended that respondent be suspended for a period of one
(1) year from the practice of law, with a stem warning that a repetition
of the same or similar acts shall be dealt with more severely. It held
respondent liable for violation of Rule 7.03, Rule 8.01, and Rule
19.01 of the Code of Professional Responsibility for having posted the
above-quoted remarks on his Facebook account, pointing out that
respondent cannot invoke the "private" nature of his posts,
considering that he had at least 2,000 "friends" who can read and
react thereto. Moreover, the IBP-CBD maintained that the criminal
127
cases he had filed against complainant on behalf of Norcio had been
dismissed for insufficient evidence; therefore, he can no longer
campaign against complainant whose alleged crimes against Norcio
had not been established.
In a Resolution dated September 27, 2014, the IBP Board of
Governors resolved to adopt and approve the August 13, 2013 Report
and Recommendation of the IBP-CBD.
Respondent moved for reconsideration, arguing that there was no
specific act attributed to him that would warrant his suspension from
the practice of law. He also averred that the libel cases filed against
him by an employee of BMGI had already been dismissed, without
prejudice, for lack of jurisdiction.
In a Resolution dated October 28, 2015, the IBP Board of Governors
partially granted respondent's motion, reducing the penalty from one
(1) year to six (6) months suspension.
The Issue Before the Court
The sole issue for the Court's resolution is whether or not respondent
should be held administratively liable based on the allegations of the
verified complaint.
The Court's Ruling
The Court has examined the records of this case and concurs with the
IBP's findings, except as to the penalty imposed on respondent.
At the outset, the Court notes that respondent never denied that he
posted the purportedly vulgar and obscene remarks about
complainant and BMGI on his Facebook account. In defense, however,
he invokes his right to privacy, claiming that they were "private
remarks" on his "private account" that can only be viewed by his circle
of friends. Thus, when complainant accessed the same, she violated
his constitutionally guaranteed right to privacy.
The defense is untenable.
Facebook is currently the most popular social media site, having
surpassed one (1) billion registered accounts and with 1.71 billion
monthly active users. Social media are web-based platforms that
enable online interaction and facilitate users to generate and share
content. There are various classifications of social media platforms
and one can be classified under the "social networking sites" such as
Facebook.
Facebook is a "voluntary social network to which members subscribe
and submit information. x x x It has a worldwide forum enabling
friends to share information such as thoughts, links, and photographs,
with one another." Users register at this site, create a personal profile
or an open book of who they are, add other users as friends, and
exchange messages, including automatic notifications when they
update their profile. A user can post a statement, a photo, or a video
on Facebook, which can be made visible to anyone, depending on the
user's privacy settings.
To address concerns about privacy, but without defeating its purpose,
Facebook was armed with different privacy tools designed to regulate
the accessibility of a user's profile, as well as information uploaded by
the user. In H v. W, the South Gauteng High Court of Johannesburg,
Republic of South Africa recognized this ability of the users to
"customize their privacy settings," but with the cautionary advice that
although Facebook, as stated in its policies, "makes every effort to
protect a user's information, these privacy settings are however not
foolproof."
Consequently, before one can have an expectation of privacy in his or
her online social networking activity - in this case, Facebook - it is first
necessary that said user manifests the intention to keep certain posts
private, through the employment of measures to prevent access
thereto or to limit its visibility. This intention can materialize in
cyberspace through the utilization of Facebook's privacy tools. In other
words, utilization of these privacy tools is the manifestation, in the
cyber world, of the user's invocation of his or her right to informational
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 privacy.
The bases of the instant complaint are the Facebook posts maligning
and insulting complainant, which posts respondent insists were set to
private view. However, the latter has failed to offer evidence that he
utilized any of the privacy tools or features of Facebook available to
him to protect his posts, or that he restricted its privacy to a select
few. Therefore, without any positive evidence to corroborate his
statement that the subject posts, as well as the comments thereto,
were visible only to him and his circle of friends, respondent's
statement is, at best, self-serving, thus deserving scant consideration.
Moreover, even if the Court were to accept respondent's allegation
that his posts were limited to or viewable by his "Friends" only, there
is no assurance that the same - or other digital content that he uploads
or publishes on his Facebook profile - will be safeguarded as within
the confines of privacy, in light of the following:
k "allows the world to be more open and connected by giving its users the tools to interact among
number of Facebook users "befriend" other users who are total strangers;
er number of "Friends" one user has, usually by the hundreds; and
Facebook friend can "share" the former's post, or "tag" others who are not Facebook friends with the former, despite its
ible only to his or her own Facebook friends.
Thus, restricting the privacy of one's Facebook posts to "Friends" does
not guarantee absolute protection from the prying eyes of another
user who does not belong to one's circle of friends. The user's own
Facebook friend can share said content or tag his or her own Facebook
friend thereto, regardless of whether the user tagged by the latter is
Facebook friends or not with the former. Also, when the post is shared
or when a person is tagged, the respective Facebook friends of the
person who shared the post or who was tagged can view the post, the
privacy setting of which was set at "Friends." Under the
circumstances, therefore, respondent's claim of violation of right to
privacy is negated.
Neither can the Court accept the argument that the subject remarks
were written in the exercise of his freedom of speech and expression.
Time and again, it has been held that the freedom of speech and of
expression, like all constitutional freedoms, is not absolute. While the
freedom of expression and the right of speech and of the press are
and sharethe in
most
anyzealously protected rights in the Constitution, every
conceivable
person exercising them, as the Civil Code stresses, is obliged to act
with justice, give everyone his due, and observe honesty and good
faith. As such, the constitutional right of freedom of expression may
not be availed of to broadcast lies or half-truths, insult others, destroy
their name or reputation or bring them into disrepute.
A punctilious scrutiny of the Facebook remarks complained of
disclosed that they were ostensibly made with malice tending to insult
and tarnish the reputation of complainant and BMGI. Calling
complainant a "quack doctor," "Reyna ng Kaplastikan," "Reyna ng
Payola," and "Reyna ng Kapalpakan," and insinuating that she has
been bribing people to destroy respondent smacks of bad faith and
reveals an intention to besmirch the name and reputation of
complainant, as well as BMGI. Respondent also ascribed criminal
negligence upon complainant and BMGI by posting that complainant
disfigured ("binaboy") his client Norcio, labeling BMGI a "Frankenstein
Factory," and calling out a boycott of BMGI's services all these despite
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the pendency of the criminal cases that Norcio had already filed
against complainant. He even threatened complainant with conviction
for criminal negligence and estafa which is contrary to one's obligation
"to act with justice."·
In view of the foregoing, respondent's inappropriate and obscene
language, and his act of publicly insulting and undermining the
reputation of complainant through the subject Facebook posts are,
therefore, in complete and utter violation of the following provisions
in the Code of Professional Responsibility:
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he, whether in public or private
life, behave in a scandalous manner to the discredit of the legal
profession.
Rule 8.01 - A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Rule 19.01 - A lawyer shall employ only fair and honest means to
attain the lawful objectives of his client and shall not present,
participate in presenting or threaten to present unfounded criminal
charges to obtain an improper advantage in any case or proceeding.
By posting the subject remarks on Facebook directed at complainant
and BMGI, respondent disregarded the fact that, as a lawyer, he is
bound to observe proper decorum at all times, be it in his public or
private life. He overlooked the fact that he must behave in a manner
befitting of an officer of the court, that is, respectful, firm, and decent.
Instead, he acted inappropriately and rudely; he used words
unbecoming of an officer of the law, and conducted himself in an
aggressive way by hurling insults and maligning complainant's and
BMGI's reputation.
That complainant is a public figure and/or a celebrity and therefore, a
public personage who is exposed to criticism does not justify
respondent's disrespectful language. It is the cardinal condition of all
criticism that it shall be bona fide, and shall not spill over the walls of
decency and propriety. In this case, respondent's remarks against
complainant breached the said walls, for which reason the former
must be administratively sanctioned.
"Lawyers may be disciplined even for any conduct committed in their
private capacity, as long as their misconduct reflects their want of
probity or good demeanor, a good character being an essential
qualification for the admission to the practice of law and for
continuance of such privilege. When the Code of Professional
Responsibility or the Rules of Court speaks of conduct or misconduct,
the reference is not confined to one's behavior exhibited in connection
with the performance of lawyers' professional duties, but also covers
any misconduct, which—albeit unrelated to the actual practice of their
profession—would show them to be unfit for the office and unworthy
of the privileges which their license and the law invest in
them." Accordingly, the Court finds that respondent should be
suspended from the practice of law for a period of one (1) year, as
originally recommended by the IBP-CBD, with a stem warning that a
repetition of the same or similar act shall be dealt with more severely.
WHEREFORE, respondent Atty. Roberto "Argee" C. Guevarra is
found guilty of violation of Rules 7.03, 8.01, and 19.01 of the Code of
Professional Responsibility. He is hereby SUSPENDED from the
practice of law for a period of one (1) year, effective upon his receipt
of this Decision, and is STERNLY WARNED that a repetition of the
same or similar acts will be dealt with more severely.
Let a copy of this Decision be furnished the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and the Office of the Court
Administrator for circulation to all the courts.
SO ORDERED.
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