EN BANC
and his witnesses to repeat in his presence what they had said at the preliminary
G.R. No. L-2068 October 20, 1948
DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of
Pampanga, Respondent.
E. M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari
for respondent
TUASON, J.: chanrobles virtual law library
The petitioner herein, an accused in a criminal case, filed a motion with the Court of First
Instance of Pampanga after he had been bound over to that court for trial, praying that the
record of the case be remanded to the justice of the peace court of Masantol, the court of
origin, in order that the petitioner might cross-examine the complainant and her witnesses in
connection with their testimony, on the strength of which warrant was issued for the arrest
of the accused. The motion was denied and that denial is the subject matter of this
proceeding.chanroblesvirtualawlibrary chanrobles virtual law library
According to the memorandum submitted by the petitioner's attorney to the Court of First
Instance in support of his motion, the accused, assisted by counsel, appeared at the
preliminary investigation. In that investigation, the justice of the peace informed him of the
charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of
not guilty. "Then his counsel moved that the complainant present her evidence so that she
and her witnesses could be examined and cross-examined in the manner and form provided
by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and
the objection was sustained. "In view thereof, the accused's counsel announced his intention
to renounce his right to present evidence," and the justice of the peace forwarded the case
to the court of first instance.chanroblesvirtualawlibrary chanrobles virtual law library
Leaving aside the question whether the accused, after renouncing his right to present
evidence, and by reason of that waiver he was committed to the corresponding court for
trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his
jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the
record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-
1336, recently promulgated, in which case the respondent justice of the peace had allowed
the accused, over the complaint's objection, to recall the complainant and her witnesses at
the preliminary investigation so that they might be cross-examined, we sustained the justice
of the peace's order. We said that section 11 of Rule 108 does not curtail the sound
discretion of the justice of the peace on the matter. We said that "while section 11 of Rule
108 defines the bounds of the defendant's right in the preliminary investigation, there is
nothing in it or any other law restricting the authority, inherent in a court of justice, to
pursue a course of action reasonably calculated to bring out the truth."chanrobles virtual law
library
But we made it clear that the "defendant can not, as a matter of right, compel the complaint
examination before the issuance of the order of arrest." We called attention to the fact that
"the constitutional right of an accused to be confronted by the witnesses against him does
not apply to preliminary hearings' nor will the absence of a preliminary examination be an
infringement of his right to confront witnesses." As a matter of fact, preliminary investigation
may be done away with entirely without infringing the constitutional right of an accused
under the due process clause to a fair trial.chanroblesvirtualawlibrary chanrobles virtual law
library
The foregoing decision was rendered by a divided court. The minority went farther than the
majority and denied even any discretion on the part of the justice of the peace or judge
holding the preliminary investigation to compel the complainant and his witnesses to testify
anew.chanroblesvirtualawlibrary chanrobles virtual law library
Upon the foregoing considerations, the present petition is dismissed with costs against the
petitioner.
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions
FERIA, J., dissenting:chanrobles virtual law library
I am sorry to dissent from the decision.chanroblesvirtualawlibrary chanrobles virtual law
library
The petitioner in the present case appeared at the preliminary investigation before the
Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal
charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the
counsel for the petitioner moved that the complainant present her evidence so that her
witnesses could be examined and cross-examined in the manner and form provided by law."
The fiscal and the private prosecutor objected to petitioner's motion invoking section 11,
Rule 108, and the objection was sustained. In view thereof, the accused refused to present
his evidence, and the case was forwarded to the Court of First Instance of
Pampanga.chanroblesvirtualawlibrary chanrobles virtual law library
The counsel for the accused petitioner filed a motion with the Court of First Instance praying
that the record of the case be remanded to the justice of the peace of Masantol, in order
that the petitioner might cross-examine the complainant and her witnesses in connection
with their testimony. The motion was denied, and for that reason the present special civil
action of mandamus was instituted.chanroblesvirtualawlibrary chanrobles virtual law library
It is evident that the refusal or waiver of the petitioner to present his evidence during the
investigation in the justice of the peace, was not a waiver of his alleged right to be
confronted with and cross-examine the witnesses for the prosecution, that is, of the
preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he
claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the
Court of First Instance, counsel for the petitioner filed a motion with said court to remand
the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary
investigation. His motion having been denied, the petitioner has filed the present action in
which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground
that it deprives him of the right to be confronted with and cross-examine the witnesses for
the prosecution, contrary to the provision of section 13, Article VIII, of the
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and
decide the question of validity or constitutionality of said section 11 in connection with
section 1 of Rule 108, because that question was not raised therein, and we merely
construed the provisions on preliminary investigation or Rule 108. In said case the writer of
this dissenting opinion said:
It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a
practising attorney, was the one who prepared the draft of the Rules of Court relating to
criminal procedure, and the provisions on preliminary investigation in the draft were the
same as those of the old law, which gave the defendant the right to be confronted with and
to cross-examine the witnesses for the prosecution. But the Supreme Court approved and
adopted in toto the draft, except the part referring to preliminary investigation which it
modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of
Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to
the majority decision, which is a judicial legislation and makes the exercise of the right of a
defendant to be confronted, with and cross-examine the witnesses against him, to depend
entirely upon the whim or caprice of a judge or officer conducting the preliminary
investigation.
But now the question of the validity of said section 11, Rule 108, is squarely presented to this
Court for decision, we have perforce to pass upon it.chanroblesvirtualawlibrary chanrobles
virtual law library
Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have
power to promulgate rules concerning pleading, practice and procedure in all courts, but said
rules shall not diminish, increase or modify substantive rights." The constitution added the
last part of the above-quoted constitutional precept in order to emphasize that the Supreme
Court is not empowered, and therefore can not enact or promulgate substantive laws or
rules, for it is obvious that rules which diminish, increase or modify substantive rights, are
substantive and not adjective laws or rules concerning pleading, practice and
procedure.chanroblesvirtualawlibrary chanrobles virtual law library
It does not require an elaborate arguments to show that the right granted by law upon a
defendant to be confronted with and cross-examine the witnesses for the prosecuted in
preliminary investigation as well as in the trial of the case is a substantive right. It is based on
human experience, according to which a person is not prone to tell a lie against another in
his presence, knowing fully well that the latter may easily contradict him, and that the
credibility of a person or veracity of his testimony may be efficaciously tested by a cross-
examination. It is substantive right because by exercising it, an accused person may show,
even if he has no evidence in his favor, that the testimonies of the witnesses for the
prosecution are not sufficient to indicate that there is a probability that a crime has been
committed and he is guilty thereof, and therefore the accused is entitled to be released and
not committed to prison, and thus avoid an open and public accusation of crime, the trouble,
expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which
a criminal prosecution always entails.chanroblesvirtualawlibrary chanrobles virtual law
library
This right is not a constitutional but a statutory right granted by law to an accused outside of
the City of Manila because of the usual delay in the final disposition of criminal cases in
provinces. The law does not grant such right to a person charged with offenses triable by the
Court of First Instance in the City of Manila, because of the promptness, actual or
presumptive, with which criminal cases are tried and disposed of in the Court of First
Instance of said city. But this right, though not a constitutional one, can not be modified,
abridged, or diminished by the Supreme Court, by virtue of the rule making power conferred
upon this Court by the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library
Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in
which the question of constitutionality or validity of said section had not been squarely
raised) do away with the defendant's right under discussion, it follows that said section 11
diminishes the substantive right of the defendant in criminal case, and this Court has no
power or authority to promulgate it and therefore is null and void.chanroblesvirtualawlibrary
chanrobles virtual law library
The fact that the majority of this Court has ruled in the above cited case of Dequito and
Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to
grant a defendant's request to have the witnesses for the prosecution recalled to testify
again in the presence of the defendant and be cross-examined by the latter, does not
validate said provision; because to make the exercise of an absolute right discretionary or
dependent upon the will or discretion of the court or officer making the preliminary
investigation, is evidently to diminish or modify it.chanroblesvirtualawlibrary chanrobles
virtual law library
Petition is therefore granted.
PERFECTO, J., dissenting:chanrobles virtual law library
In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano,
No. L-1336, we said:
In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that
will not contravene the constitutional provision guaranteeing to all accused the right "to
meet the witnesses face to face." (Section 1 [17], Article III.)chanrobles virtual law library
Consequently, at the preliminary hearing contemplated by said reglementary section, the
defendant is entitled as a matter of fundamental right to her the testimony of the witnesses
for the prosecution and to cross-examine them.chanroblesvirtualawlibrary chanrobles virtual
law library
Although in such preliminary hearing the accused cannot finally be convicted, he is liable to
endure the ordeal eloquently depicted in the decision, and the constitutional guarantee
protects defendants, not only from the jeopardy of being finally convicted and punished, but
also from the physical, mental and moral sufferings that may unjustly be visited upon him in
any one of the stages of the criminal process instituted against him. He must be afforded the
opportunities to have the charges against him quashed, not only at the final hearing, but also
at the preliminary investigation, if by confronting the witnesses for the prosecution he can
convince the court that the charges are groundless. There is no justice in compelling him to
undergo the troubles of a final hearing if at the preliminary hearing the case can be
terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty
gesture that should not have a place within the framework of dignified and solemn judicial
proceedings.
On the strength of the above quoted opinion the opinion should be granted and so we
vote.chanroblesvirtualawlibrary chanrobles virtual law library
Petition dismissed.
RESOLUTION
March 8, 1949
TUASON, J.: chanrobles virtual law library
This cause is now before us on a motion for reconsideration.chanroblesvirtualawlibrary
chanrobles virtual law library
In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs.
Arellano, G.R. No. L-1336: "The constitutional right of an accused to be confronted by the
witnesses against him does not apply to preliminary hearings; nor will the absence of a
preliminary examination be an infringement of his right to confront witness. As a matter of
fact, preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial." We took this
ruling to be ample enough to dispose the constitutional question pleaded in the application
for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the
subject.chanroblesvirtualawlibrary chanrobles virtual law library
It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article
VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters
and impairs substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library
We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its
predecessors, is an adjective law and not a substantive law or substantive right. Substantive
law creates substantive rights and the two terms in this respect may be said to be
synonymous. Substantive rights is a term which includes those rights which one enjoys under
the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is
that part of the law which creates, defines and regulates rights, or which regulates the rights
and duties which give rise to a cause of action; that part of the law which courts are
established to administer; as opposed to adjective or remedial law, which prescribes the
method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S.,
1026.)chanrobles virtual law library
As applied to criminal law, substantive law is that which declares what acts are crimes and
prescribes the punishment for committing them, as distinguished from the procedural law
which provides or regulates the steps by which one who commits a crime is to be punished.
(22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first
step taken in a criminal prosecution.chanroblesvirtualawlibrary chanrobles virtual law library
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the "the
mode and manner of proving the competent facts and circumstances on which a party relies
to establish the fact in dispute in judicial proceedings" - is identified with and forms part of
the method by which, in private law, rights are enforced and redress obtained, and, in
criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence
and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have
been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole code of evidence embodied in these
Rules.chanroblesvirtualawlibrary chanrobles virtual law library
In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:
Expressions are to be found in earlier judicial opinions to the effect that the constitutional
limitation may be transgressed by alterations in the rules of evidence or procedure. See
Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326,
18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct.
Rep., 443. And there may be procedural changes which operate to deny to the accused a
defense available under the laws in force at the time of the commission of his offense, or
which otherwise affect him in such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep.,
443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not
well settled that statutory changes in the mode of trial or the rules of evidence, which do not
deprive the accused of a defense and which operate only in a limited and unsubstantial
manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges
the class of persons who may be witnesses at the trial, by removing the disqualification of
persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L.
ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules
of evidence after the indictment so as to render admissible against the accused evidence
previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup.
Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed.,
573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead.
See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570.
Tested by this standard, we do not believe that the curtailment of the right of an accused in a
preliminary investigation to cross-examine the witnesses who had given evidence for his
arrest is of such importance as to offend against the constitutional inhibition. As we have said
in the beginning, preliminary investigation is not an essential part of due process of law. It
may be suppressed entirely, and if this may be done, mere restriction of the privilege
formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition.chanroblesvirtualawlibrary chanrobles virtual law library
While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in
a preliminary investigation, his right to present his witnesses remains unaffected, and his
constitutional right to be informed of the charges against him both at such investigation and
at the trial is unchanged. In the latter stage of the proceedings, the only stage where the
guaranty of due process comes into play, he still enjoys to the full extent the right to be
confronted by and to cross-examine the witnesses against him. The degree of importance of
a preliminary investigation to an accused may be gauged by the fact that this formality is
frequently waived.chanroblesvirtualawlibrary chanrobles virtual law library
The distinction between "remedy" and "substantive right" is incapable of exact definition.
The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs.
Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power
over remedy and procedure can pass without touching upon the substantive rights of parties
affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279
P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on
substantive rights, and the Constitution must be presumed to tolerate if not to expect such
incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a
defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the
Court's power is not merely to compile, revise or codify the rules of procedure existing at the
time of the Constitution's approval. This power is "to promulgate rules concerning pleading,
practice, and procedure in all courts," which is a power to adopt a general, complete and
comprehensive system of procedure, adding new and different rules without regard to their
source and discarding old ones.chanroblesvirtualawlibrary chanrobles virtual law library
The motion is denied.
Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.
FERIA, J., dissenting:chanrobles virtual law library
I dissent.chanroblesvirtualawlibrary chanrobles virtual law library
The motion for reconsideration must be granted.chanroblesvirtualawlibrary chanrobles
virtual law library
According to the resolution, the right of a defendant to be confronted with and cross-
examine the witnesses for the prosecution in a preliminary investigation granted by law or
provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the
Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this
Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following
reasons:chanrobles virtual law library
First. Because "preliminary investigation is eminently and essentially remedial; it is the first
step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also
procedural." . . . "The entire rules of evidence have been incorporated into the Rules of
Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional
grounds without throwing out the whole Code of evidence embodied in these
rules."chanrobles virtual law library
Secondly. Because, "preliminary investigation is not an essential part of due process of law. It
may be suppressed entirely, and if this may be done, mere restriction of the privilege
formerly enjoyed thereunder can not be held to fall within the constitutional
prohibition."chanrobles virtual law library
Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact
definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in
any particular case beyond which legislative power over remedy and procedure can pass
without touching upon the substantive rights of parties affected, as it is impossible to fix that
boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in
making rules should step on substantive rights, and the Constitution must be presumed to
tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary
manner or deprive him of a defense, but operates only in a limited and unsubstantial manner
to his disadvantage."chanrobles virtual law library
Before proceeding it is necessary to distinguish substantive law from procedure, for the
distinction is not always well understood. Substantive law is that part of the law which
creates, defines, and regulates rights as opposed to objective or procedural law which
prescribes the method of enforcing rights. What constitutes practice and procedure in the
law is the mode or proceeding by which a legal right is enforced, "that which regulates the
formal steps in an action or judicial proceedings; the course of procedure in courts; the form,
manner and order in which proceedings have been, and are accustomed to be had; the form,
manner and order of carrying on and conducting suits or prosecutions in the courts through
their various sages according to the principles of law and the rules laid down by the
respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje &
Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law
Dictionary.chanroblesvirtualawlibrary chanrobles virtual law library
Substantive rights may be created or granted either in the Constitution or in any branch of
the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure,
Act No. 190, as amended, there are provisions which create, define and regulate substantive
rights, and many of those provisions such as those relating to guardianship, adoption,
evidence and many others are incorporated in the Rules of Court for the sake of convenience
and not because this Court is empowered to promulgate them as rules of court. And our old
law of Criminal Procedure General Orders No. 58 grants the offended party the right to
commence a criminal action or file a complaint against the offender and to intervene in the
criminal prosecution against him, and grants the defendant in the Court of First Instance
(except in the City of Manila) the right to bail, and to a preliminary investigation including his
rights during said investigation, and the rights at the trial, which are now reproduced or
incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in
question. And all these, and others not necessary for us to mention, are obviously
substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library
(1) As to the first argument, the premise "the preliminary investigation is eminently and
essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line
with the conclusion in the resolution, because remedial law is one thing, and procedural law
is another. Obviously they are different branches of the law. "Remedial statute" is "a statute
providing a remedy for an injury as distinguished from a penal statute. A statute giving a
party a mode of remedy for a wrong where he had none or a different one before. . . .
Remedial statutes are those which are made to supply such defects, and abridge such
superfluities in the common law, as arise either from the general imperfections of all human
law, from change of time and circumstances, from the mistakes and unadvised determination
of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law
Dictionary, third edition, pp. 1525, 1526.)chanrobles virtual law library
It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after
arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions
of said section to the effect that "the defendant, after the arrest and his delivery to the court
has the right to be informed of the complaint or information filed against him, and also to be
informed of the testimony and evidence presented against him, and may be allowed to
testify and present witnesses or evidence for him if he so desires," are not rules of evidence;
and in the second place, it is evident that most of the rules of evidence, if not all, are
substantive laws that define, create or regulate rights, and not procedural. "Rules of
evidence are substantive rights found in common law chiefly and growing out of reasoning,
experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P.,
1102.) "It is true that weighing of evidence and the rules of practice with respect thereto
form part of the law of procedure, but the classification of proofs is sometime determined by
the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice,
conclusive as well as juris tantum presumption, hearsay and best evidence rule, parol
evidence rule, interpretation of documents, competency of a person to testify as a witness
be considered procedural?chanrobles virtual law library
Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108
on constitutional grounds without throwing out the whole code of evidence embodied in
these Rules," is evidently wrong, not only for the reason just stated, but because our
contention that the defendant can not be deprived of his right to be confronted with and
cross-examine the witness of the prosecution is a preliminary investigation under
consideration would not, if upheld, necessarily tear down said section. Our theory, is that
said section 11 should be so construed as to be valid and effective, that is, that if the
defendant asks the court to recall the witness or witnesses for the prosecution to testify
again in his presence, and to allow the former to cross-examine the latter, the court or officer
making the preliminary investigation is under obligation to grant the request. But if the
defendant does not so ask the court, he should be considered as waiving his right to be
confronted with and cross-examine the witness against him.chanroblesvirtualawlibrary
chanrobles virtual law library
(2) With respect to the second argument or reason, it is true that the preliminary
investigation as provided for in the General Orders, No. 58, as amended, is not an essential
part of due process of law, because "due process of law" is not iron clad in its meaning; its
does not necessarily mean a particular procedure. Due process of law simply requires a
procedure that fully protects the life, liberty and property. For that reason the investigation
to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of
the Administrative Code, before filing an information, was considered by this Court as
sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18
Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already
and correctly held that: "The law having explicitly recognized and established that no person
charged with the commission of a crime shall be deprived of his liberty or subjected to trial
without prior preliminary investigation (provided for in General orders, No. 58, as amended)
that shall show that there are reasonable grounds to believe him guilty, there can be no
doubt that the accused who is deprived of his liberty, tried and sentenced without the proper
preliminary investigation having been made in his regard, is convicted without the process of
law," (United States vs. Banzuela, 31 Phil., 564).chanroblesvirtualawlibrary chanrobles virtual
law library
The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no
application to the present case, for the question involved therein was the power of Congress
to alter the rules of evidence and procedure without violating the constitutional precept that
prohibits the passing of ex post facto law, while the question herein involved is the power of
the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish
the substantive right of a defendant, expressly prohibited by the same provision of the
Constitution that confers upon this Court the power to promulgate said
rules.chanroblesvirtualawlibrary chanrobles virtual law library
(3) The last reason or argument premised on the conclusion that "the distinction between
remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is
somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as
we have already said in refuting the majority's first reason, remedy and procedure are two
completely different things.chanroblesvirtualawlibrary chanrobles virtual law library
As above defined, substantive law is clearly differentiated from procedural law and practice.
But even assuming arguendo that it is difficult to draw the line in any particular case beyond
which the power of the court over procedure can not pass without touching upon the
substantial right of the parties, what this Court should do in that case would be to abstain
from promulgating such rule of procedure which many increase, diminish or modify
substantive right in order to avoid violating the constitutional prohibition above referred to.
Because as this Supreme Court is not empowered by the Constitution to legislate on or
abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure
which "shall not diminish, increase or modify substantive rights," this Court can not step on
them in making the rules, and the Constitution must be presumed not to tolerate nor expect
such incursion as would affect the substantive rights of the accused in any
manner.chanroblesvirtualawlibrary chanrobles virtual law library

Besides, depriving an accused of his right to be confronted and cross-examine the witness
against him in a preliminary investigation would affect the accused not in a limited and
unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the
absence of the defendant and without an opportunity on the part of the latter to cross-
examine him is a hearsay evidence, and it should not be admitted against the defendant in a
preliminary investigation that is granted to the latter as a protection against hasty, malicious
and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused
who is innocent and should not be arrested, or if arrested should be released immediately a
short time after his arrest after the preliminary investigation, would have to be held for trial
and wait for a considerable period of time until the case is tried and acquitted after trial by
the Courts of First Instance in provinces on account of the admission of such evidence in the
preliminary investigation, evidence not admissible at the trial.chanroblesvirtualawlibrary
chanrobles virtual law library

Therefore, the motion for reconsideration is granted, and after the necessary proceedings
the decision of the majority reversed or modified in accordance with my dissenting opinion.

PERFECTO, J.: chanrobles virtual law library

We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration
should be granted.

Endnotes:

TUASON, J.:

1 Rights of defendant after arrest. - After the arrest of the defendant and his delivery to

the court, he shall be informed of the complaint or information filed against him. He shall
also be informed of the substance of the testimony and evidence presented against him, and,
if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to
do so. The testimony of the witnesses need not be reduced to writing but that of the
defendant shall be taken in writing and subscribed by him.chanroblesvirtualawlibrary
chanrobles virtual law library

2 The Supreme Court shall have the power to promulgate rules concerning pleading,

practice, and procedure in all courts, and the admission to the practice of law. Said rules shall
be uniform for all courts of the same grade and shall not diminish, increase, or modify
substantive rights. The existing laws on pleading, practice, and procedure are hereby
repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme
Court to alter and modify the same. The National Assembly shall have the power to repeal,
alter, or supplement the rules concerning pleading, practice, and procedure, and the
admission to the practice of law in the Philippines.
G.R. Nos. 108135-36 August 14, 2000
POTENCIANA M. EVANGELISTA, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, (FIRST
DIVISION), respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On September 30, 1999, we rendered a Decision in this case acquitting petitioner of the
charge of violation of then Section 268 (4) of the National Internal Revenue Code1 but
affirming her conviction for violation of Republic Act No. 3019, Section 3 (e),2 thus imposing
on her an indeterminate sentence of imprisonment for six (6) years and one month as
minimum to twelve (12) years as maximum, and the penalty of perpetual disqualification
from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an
application for tax credit in the amount of P180,701,682.00, for allegedly erroneous
payments of ad valorem taxes from January 1, 1986 to August 31, 1987. Tanduay claimed
that it is a rectifier of alcohol and other spirits, which per previous ruling of the BIR is only
liable to pay specific taxes and not ad valorem taxes. Upon receipt of the application,
Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue Accounting
Division (RAD), headed by petitioner, requesting the said office to check and verify whether
the amounts claimed by Tanduay were actually paid to the BIR as ad valorem taxes. Larin’s
memorandum was received by the Revenue Administrative Section (RAS), a subordinate
office of the RAD. After making the necessary verification, the RAS prepared a certification in
the form of a 1st Indorsement to the Specific Tax Office, dated September 25, 1987, which
was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax payments classified under Tax Numeric
Code (TNC) 3011-0001 totalling P102,519,100.00 and payments classified under TNC 0000-
0000 totalling P78,182,582.00. Meanwhile, Teodoro Pareño, head of the Tax and Alcohol
Division, certified to Justino Galban, Jr., Head of the Compounders, Rectifiers and Repackers
Section, that Tanduay was a rectifier not liable for ad valorem tax. Pareño recommended to
Larin that the application for tax credit be given due course. Hence, Larin recommended that
Tanduay’s claim be approved, on the basis of which Deputy Commissioner Eufracio D. Santos
signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR
Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was
irregular and anomalous. Based on this, Larin, Pareño, Galban and petitioner Evangelista
were charged before the Sandiganbayan with violation of Section 268 (4) of the National
Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and Corrupt Practices
Act. Larin, Pareño and petitioner were later convicted of both crimes, while Galban was
acquitted inasmuch as his only participation in the processing of Tanduay’s application was
the preparation of the memorandum confirming that Tanduay was a rectifier.
The three accused filed separate petitions for review. Pareño’s and Larin’s petitions were
consolidated and, in a decision dated April 17, 1996, both were acquitted by this Court in
Criminal Cases Nos. 14208 and 14209.3 In this petition, on the other hand, we acquitted
petitioner in Criminal Case No. 14208, for violation of Section 268 (4) of the NIRC. However,
we found petitioner guilty of gross negligence in issuing a certification containing TNCs which
she did not know the meaning of and which, in turn, became the basis of the Bureau’s grant
of Tanduay’s application for tax credit. Thus, we affirmed petitioner’s conviction in Criminal
Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act.
Petitioner seasonably filed a Motion for Reconsideration,4 wherein she asserts that there
was nothing false in her certification inasmuch as she did not endorse therein approval of the
application for tax credit. Rather, her certification showed the contrary, namely, that
Tanduay was not entitled to the tax credit since there was no proof that it paid ad valorem
taxes. Petitioner also claims that she was neither afforded due process nor informed of the
nature and cause of the accusation against her. She was found guilty of an offense different
from that alleged in the information; consequently, she was unable to properly defend
herself from the crime for which she was convicted.
The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in
fine that they caused undue injury to the Government and gave unwarranted benefits to
Tanduay when they endorsed approval of the claim for tax credit by preparing, signing and
submitting false memoranda, certification and/or official communications stating that
Tanduay paid ad valorem taxes when it was not liable for such because its products are
distilled spirits on which specific taxes are paid, by reason of which false memoranda,
certification and/or official communications the BIR approved the application for tax credit,
thus defrauding the Government of the sum of P107,087,394.80, representing the difference
between the amount claimed as tax credit and the amount of ad valorem taxes paid by
Tanduay to the BIR.5 According to petitioner, instead of convicting her of the acts described
in the Information, she was convicted of issuing the certification without identifying the kinds
of tax for which the TNCs stand and without indicating whether Tanduay was really entitled
to tax credit or not.
The Solicitor General filed his Comment6 wherein he joined petitioner’s cause and prayed
that the motion for reconsideration be granted. In hindsight, even the Solicitor General’s
comment on the petition consisted of a "Manifestation and Motion in lieu of Comment,"7
where he recommended that petitioner be acquitted of the two charges against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it would appear that the
certification made by petitioner in her 1st Indorsement was not favorable to Tanduay’s
application for tax credit. Far from it, petitioner’s certification meant that there were no
payments of ad valorem taxes by Tanduay in the records and hence, it was not entitled to tax
credit. In other words, the certification was against the grant of Tanduay’s application for tax
credit.
It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes
according to their kinds and rates, in order to facilitate the preparation of statistical and
other management reports, the improvement of revenue accounting and the production of
tax data essential to management planning and decision-making. These codes include TNC
No. 3011-0001 for specific tax on domestic distilled spirits, TNC No. 3023-2001 for ad
valorem tax on compounded liquors, and TNC No. 0000-0000 for unclassified taxes.
Petitioner’s 1st Indorsement dated September 25, 1987 lists down the confirmation receipts
covering tax payments by Tanduay for the period January 1, 1986 to August 31, 1987, during
which Tanduay alleges that it made erroneous ad valorem tax payments, classified according
to TNC numbers. The tax payments therein are described only as falling under TNC No. 3011-
0001, i.e., specific tax, and TNC No. 0000-0000, i.e., unclassified taxes. There are no tax
payments classified as falling under TNC No. 3023-2001, the code for ad valorem taxes. The
import of this, simply, is that Tanduay did not make any ad valorem tax payments during the
said period and is, therefore, not entitled to any tax credit.
Further, petitioner contends that she was convicted of a supposed crime not punishable by
law.8 She was charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft
and Corrupt Practices Act, which states:
SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(e)....Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official,
judicial or administrative functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
xxx xxx xxx
The elements of the offense are: (1) that the accused are public officers or private persons
charged in conspiracy with them; (2) that said public officers commit the prohibited acts
during the performance of their official duties or in relation to their public positions; (3) that
they cause undue injury to any party, whether the Government or a private party; (4) that
such injury is caused by giving unwarranted benefits, advantage or preference to such
parties; and (5) that the public officers have acted with manifest partiality, evident bad faith
or gross inexcusable negligence.9
R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the
public officer should have acted by causing any undue injury to any party, including the
Government, or by giving any private party unwarranted benefits, advantage or preference in
the discharge of his functions. The use of the disjunctive term "or" connotes that either act
qualifies as a violation of Section 3, paragraph (e), or as aptly held in Santiago,10 as two (2)
different modes of committing the offense. This does not however indicate that each mode
constitutes a distinct offense, but rather, that an accused may be charged under either mode
or under both.11
In the instant case, we find that petitioner, in issuing the certification, did not cause any
undue injury to the Government. She also did not give unwarranted benefits, advantage or
preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor act
with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioner’s
certification was against the interest of Tanduay. It did not advocate the grant of its
application for tax credit. The certification can even be read as a recommendation of denial
of the application.
Petitioner further argues that her conviction was merely based on her alleged failure to
identify with certainty in her certification the kinds of taxes paid by Tanduay and to indicate
what the TNCs stand for, which acts were different from those described in the Information
under which she was charged. This, she claims, violated her constitutional right to due
process and to be informed of the nature and cause of the accusation against her.
It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged
in the complaint or information. Constitutionally, he has a right to be informed of the nature
and cause of the accusation against him. To convict him of an offense other than that
charged in the complaint or information would be a violation of this constitutional right.12 In
the case at bar, we find merit in petitioner’s contention that the acts for which she was
convicted are different from those alleged in the Information. More importantly, as we have
discussed above, petitioner’s act of issuing the certification did not constitute corrupt
practices as defined in Section 3 (e) of R.A. 3019.
Employees of the BIR were expected to know what the TNCs stand for.1âwphi1 If they do
not, there is a "Handbook of Tax Numeric Code of Revenue Sources" which they can consult.
With this, petitioner should not be required to describe in words the kinds of tax for which
each TNC used stands for. Precisely, the purpose of introducing the use of tax numeric codes
in the Bureau was to do away with these descriptive words, in order to expedite and
facilitate communications among the different divisions therein. We find that petitioner’s
omission to indicate what kind of taxes TNC Nos. 3011-0001 and 0000-0000 stand for was
not a criminal act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla
poena sine lege. There is no crime where there is no law punishing it.
On the whole, therefore, we find that petitioner was not guilty of any criminal offense. The
prosecution’s evidence failed to establish that petitioner committed the acts described in the
Information which constitute corrupt practices. Her conviction must, therefore, be set aside.
For conviction must rest no less than on hard evidence showing that the accused, with moral
certainty, is guilty of the crime charged. Short of these constitutional mandate and statutory
safeguard --- that a person is presumed innocent until the contrary is proved --- the Court is
then left without discretion and is duty bound to render a judgment of acquittal.13

WHEREFORE, the Motion for Reconsideration is GRANTED. This Court’s Decision dated
September 30, 1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of the charge
against her.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34105 February 4, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TIMOTEO CABURAL, CIRIACO YANGYANG, BENJAMIN LASPONIA, and LEONIDE CABUAL,
accussed,TIMOTEO CABURAL and CIRIACO YANGYANG, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Benjamin A. Gravino for private respondents.
Abdon A. Arriba counsel for defendant-appellants.
RELOVA, J.:
This is an appeal from the decision of the Court of First Instance of Lanao del Norte, dated
June 4, 1970, convicting Timoteo Cabural of the crime of Robbery with Rape and sentencing
him to suffer the penalty of Reclusion Perpetua; and, convicting Leonide Cabual, Benjamin
Lasponia and Ciriaco Yangyang of the crime of Robbery and sentencing each of them to suffer
imprisonment of six (6) years and one (1) day of Prision Mayor, as minimum, to ten (10) years
of Prision Mayor, as maximum; to indemnify the offended party in the sum of P9,435.50,
without subsidiary imprisonment in case of insolvency and to pay proportionately the costs
of the proceedings.
The statement of facts in the brief filed by the People of the Philippines is as follows:
... [A]t about 2:00 o'clock in the morning of September 14, 1960, three
masked men entered the building of the Kim San Milling in Palao City of
Iligan thru an opening of the roof above the kitchen that was being
repaired and forced themselves inside a room where Pua Lim Pin
Bebencio Palang, Sy Chua Tian and Siao Chou were sleeping (tsn, pp. 78-
82, May 31, 1965; tsn, pp. 141-148, June 13, 1961). The masked men, at
gunpoint, hogtied the four occupants of the room and commanding them
to lie on the floor, face down, were all covered with blankets (tsn, pp. 82-
83, Ibid). The inmates of the room heard That the cabinets were being
ransacked (tsn, p. 82, Ibid). As this was going on, one of the men
approached Pua Lim Pin to ask him if he could open the safe to which he
answered in the negative as he was a mere employee of the firm (tsn, p.
83, May 31, 1961). An hour later, one of the men approached Sy Chua
Tian (also See Chou Kian tsn, p. 89, Ibid) and told him: 'now is 3:30, if by
4:00 the safe is not open we will kill you.' (tsn, p. 94, Ibid.)
As this was going on, another episode was taking place inside the next
room where the maids were sleeping (tsn, p. 91, May 31, 1961). Restituta
Biosano Panchita Maghanoy and Agripina Maglangit have retired at
about 10:00 o'clock in the evening of September 13, 1960, after their
chores were performed (tsn, p. 91, Ibid, tsn, p. 10, May 7,1961; tsn, p. 13,
May 29,1961; tsn, p. 25, Ibid). At about 2:00 o'clock the following
morning, they were awakened by two persons, one holding a pistol and
the other holding a hunting knife. Like the fate of the four inmates of the
other room, the maids were all hogtied, made to lie on the floor, face
downward, and were all covered with blankets (tsn, pp. 25-29, May 29,
1961).1äwphï1.ñët The two then left the room (tsn, p. 29, Ibid). After two
hours later, one of the two men re-appeared in the room and after
discovering that Agripina Maglangit had freed her hands, he showed
anger and remarked that he would separate her from the rest. With his
pistol pointed at her, he took her outside the building to a secluded place
within the Kim San Compound (tsn, pp. 30-33, Ibid.). Here, with her hands
tied, she was made to lie down flat on the ground face upwards. He then
raised her skirt, tied down her panties, and had sexual intercourse with
her. She was unable to resist him and fight back because at the time she
had lost her strength not to mention the fact that she was deprived of
the use of her hands that were both tied together. The rape having been
consummated, he pulled her left arm so she could stand up. He then left
her (tsn, pp. 33-35, Ibid.).
Agripina Maglangit recognized the features of the man that raped her.
She Identified her rapist to be the accused Timoteo Cabural (tsn, pp. 36-
39, Ibid.).
At about four o'clock that morning (September 14, 1960) all the intruders
must have left because the four men that were hogtied in the other room
noticed complete silence They each struggled to free themselves which
they succeeded. Maghanoy lost her Alosa 15-jewel watch costing her
P65.00 (tsn, p. 22, May 29, 1961); Sy Chua Tian (See Chou Kian lost his
Omega automatic wrist watch valued in the amount of P385.00 that was
snatched from his wrist by one of the robbers, besides his wallet
containing P264.00 in paper currency (tsn, p. 85 and p. 95, May 31, 1961).
After the robbers left, the inmates discovered the cash and some
personal belongings in the total amount of P9,435.50 were transported
by the robbers (tsn, pp. 29-36, Oct. 23, 1961; tsn, pp. 120-125, June 13,
1961).
The accident having been reported, both the local police as well as the
Philippine Constabulary stationed in Iligan conducted their investigation.
In the course of the investigation, members of the Philippine
 Constabulary found a.30-caliber carbine with 4 magazines and a .45
Gold 20.00.
caliber pistol well wrapped in a banca at the shore behind the house of
Ring...........................................................
the accused Benjamin Lasponia This led to the investigation of Lasponia
.
who subsequently admitted the crime and pointed to his companions
that night. On September 18, 1960, Benjamin Lasponia signed a
Sunglasses................................................ 30.00
confession before Assistant Fiscal Leonardo Magsalin, Exhibits B, B-1, B-2,
.........
and B3 at the PC headquarters in Iligan (pp. 1025-1028, Vol. III Rec.). He
confessed to the last detail his participation in the crime. On September Four pieces of golden 1,400.
19, 1960, the accused Leonide Cabual subscribed to an affidavit before bracelets...................... 00
the same Fiscal .Magsalin regarding his participation and that of -his co-
accused in the robbery of Kim San Milling in the early morning of Chinese gold ring with dark blue 90.00
September 14, 1960, Exhibits C, C-1, C-2, C3 and C5 (pp. 1029-1034, Vol. stone.........
III, Record (l). Ciriaco Yangyang followed. He subscribed his confession
before Special Counsel Dominador Padilla in the Office of the City Fiscal One gold ring with brilliant 400.00
of Iligan on September 26, 960, Exhibits H, H-1 and H2 (pp. 1036-1038, stone...................
Vol. III, Record, See complete testimony of Eustaquio Cabides, tsn, pp-
52-72, July 17, 1969). One Chinese gold necklace with red 150.00
stone...
On September 21, 1960, (1) Timoteo Cabural, alias Romeo alias Tiyoy (2) Benjamin Lasponia;
(3) Leonide Cabual alias Eddie; (4) Ciriaco Yangyang; (5) William Tate alias Negro; (6) Fausto One pair of earrings Chinese gold
Dacera and, (7) Alfonso Caloy-on alias Pablo, were charged before the Court of First Instance with.........
of Lanao del Norte of the crime of Robbery in Band with Rape, in an information filed by the
City Fiscal of Iligan City. The crime charged was allegedly committed as follows: red 60.00
stone.......................................................
That on or about September 14, 1960 in the City of Iligan Philippines, and
Three pairs of earrings with 120.00
within the jurisdiction of this Honorable Court, the said accused, in
pearls................
company with one Fred Ybañez alias Godofredo Camisic and one John
Doe, who are still-at-large, conspiring and confederating together and
Four Chinese gold rings with stones
mutually helping one another, and armed with deadly weapons, all
of........
unlicensed, to wit: carbines, revolvers, tommy guns, garand rifles and
knives, did then and there willfully, unlawfully and feloniously, with
different 140.00
intent of gain and by means of violence against and intimidation of
colors.................................................
persons, and with the use of force upon things, to wit: by passing through
an opening not intended for entrance or egress, enter the main building
Sweepstakes 45.00
and office of the Kim San Milling Company, an inhabited building, and
tickets.........................................
once inside, did then and there willfully, unlawfully and feloniously take,
steal, rob and carry away therefrom, the following personal properties, to One American gold Lady's
wit: ring.....................

Cashmoney............................................... P5,972 with dark pink stone........................... 30.00

.......... .00
Four men's 32.00
Wrist watch 100.00 rings...............................................
'Technos'......................................
One and a half dozens 34.50
handkerchiefs..........
 committed during night time and by a band; that it was committed with
Lady's wrist 30.00
the use of disguise; and that it was committed with the use of a motor
watch..........................................
vehicle.
Three ladies 69.00
watches...................................... Upon arraignment, the defendants pleaded not guilty. However, during the course of the
trial, three (3) of the accused, namely: William Tate Fausto Dacera and Alfonso Caloy-on
One men's 60.00 were dropped on petition of the City Fiscal and trial proceeded against the four (4) remaining
watch............................................. accused, namely: Timoteo Cabural, alias Romeo Cabural; Benjamin Lasponia, Leonide Cabual
and Ciriaco Yangyang. As aforesaid, Cabural, Lasponia, Cabual and Yangyang were convicted.
One Chinese gold 58.00 Benjamin Lasponia did not appeal; however, Cabural, Yangyang and Cabual did and claimed
necklace........................... that the trial court erred:

One Lady's wrist 15.00 I.

watch..................................
IN HOLDING THAT THE AFFIDAVITS OR EXTRA-JUDICIAL CONFESSIONS OF
One Chinese gold 58.00
ACCUSED BENJAMIN LASPONIA, LEONIDE CABUAL, AND CIRIACO
necklace...........................
YANGYANG WHICH WERE NOT OBTAINED THROUGH FORCE, VIOLENCE,
One Men's wrist 60.00 INTIMIDATIONS AND THREATS AND SERIOUS MALTREATMENTS ARE
watch................................... ADMISSIBLE AS EVIDENCE AND THEREFORE COULD BE A LEGAL BASIS FOR
THE CONVICTIONS OF ACCUSED.
One Men's wrist watch 65.00
'Tugaris'................... II.

Knife......................................................... 12.00 IN HOLDING THAT EVEN IF IN THE EXECUTION OF SAID AFFIDAVITS OF

......... CONFESSIONS BY THE THREE ACCUSED SOME PERSONAL
INCONVENIENCE WERE MADE BY THE PC SOLDIERS BUT BECAUSE THE
One Men's wrist CONTENTS OF SAID CONFESSIONS ARE TRUE SAID EXTRA-JUDICIAL
watch................................... CONFESSIONS ARE ADMISSIBLE AS EVIDENCE AND COULD BE MADE A
LEGAL, BASIS FOR THE CONVICTIONS OF ALL ACCUSED.
'Omega' 385.00
Seamaster...........................................
III.

with a total value of P9,435.50, belonging to the Kim San Milling
Company, Bebencio Palang, Agapito Tan, Restituta Boisano Panchita
Maghanoy, Catalina Boisano Pua Lim Pin and Sy Chua Tian to the damage
and prejudice of the said owners in the said sum of P9,435.50, Philippine
currency; and that on the occasion or by reason of the said robbery, the
above-named accused except William Tate alias Negro, conspiring and
confederating together and mutually helping one another, did then and
there willfully, unlawfully and feloniously have carnal knowledge of one
Agripina Maglangit, a woman, by means of violence and intimidation and
against her will.
Contrary to and in violation of Article 294 paragraph 2 of the Revised
Penal Code as amended by Republic Act No. 18 and Article 296 of the
Revised Penal Code as amended by Republic Act No. 12, Section 3, with
the following aggravating circumstances, to wit: that the said offense was
IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS BY THREE
ACCUSED BEING INTERLOCKING CONFESSIONS IS ENOUGH AND
SUFFICIENT TO SUSTAIN THEIR CONVICTIONS ON PROOF BEYOND
REASONABLE DOUBT;
IV.
IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS OF THREE
ACCUSED INTERLOCKED WITH EACH OTHER EVEN IF INADMISSIBLE AS
EVIDENCE BECAUSE OBTAINED THROUGH FORCE, VIOLENCE,
INTIMIDATION, ETC. IS ENOUGH TO SUSTAIN THE CONVICTION OF
ACCUSED TIMOTEO CABURAL BECAUSE HE WAS SUFFICIENTLY IdENTIFIED
BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;
 V. A He pointed to me his pistol and let me lie down.

IN HOLDING THAT THE PROSECUTION EVIDENCE FOR THE CONVICTIONS Q This place where he threatened you and made you
OF ACCUSED REACHED THE LEGAL STANDARD OF PROOF BEYOND lie down outside, was this place near to the place
REASONABLE DOUBT AS REQUIRED BY LAW. where you had slept?

On October 14, 1971, this Court granted the motion of Leonide Cabual to withdraw his A It is very far but it is within the compound of the
appeal (p. 60, rollo). Kim San

Appellant Cabural declared that from 2:00 in the afternoon of September 13, 1960 to 3:00 in Q After he had threatened you and made you lie
the early morning of September 14, 1960, he was playing mahjong with Virginia Cruz down, what, if any, did you do?
Maruhom and one Gomer in the store of Ason in Maigo, Lanao del Norte which is about 37
kilometers from Iligan City and would take about two (2) hours by us or about one (1) hour A He raised my skirt.
by car to negotiate the distance between the two places; that he could not have been
present at complainant's place at 2:00 in the morning of September 14, 1960 when the
Q At the time he was raising your skirt, what was your
robbery took place; that he was brought to the Philippine Constabulary Headquarters in
position?
Iligan City by PC soldiers on September 15, 1960 and was subjected to all kinds of torture;
and that after he was severely maltreated, including the 7-Up treatment and threatened with
pistol, he was asked to sign an affidavit. Despite his insistence that he was innocent he was A I was lying down with face upward.
induced to sign a statement after he was told: "if you obey us you may get free" and that "if
you confess we will protect you." Q After he had raised your skirt, what happened next,
if any?
Ciriaco Yangyang also denied participation in the commission of the crime considering that at
that time he was in Barrio Mentering attending the counting of votes for the muse of the A When my skirt was raised and since I have no more
barrio fiesta. He was reading the ballots cast for each candidate at the microphone. It was strength because (as demonstrated by the witness),
only in the following morning of September 14, 1960 when he returned to Maigo. her laps were numb, he took off my pantie.

The Identity of appellant Timoteo Cabural as the rapist of Agripina Maglangit is established in
the testimony of the latter as follows:
Q After that man had told you that you would be
separated from the rest, what happened next, if any?
A I was brought outside.
Q How did your laps happen to be numb?
A Because my laps were pushed so that I cannot
move.
Q What particular part of your body did he push to
numbness?

Q What do you mean by 'outside?' A My laps.

A I was brought outside of the office of the Kim San . Q After he had taken off your pantie, what, if any, did
he do?
Q After you have been taken outside, what
happened, if any? A I feel that he had what he wants.

A I was threatened and I was forced. Q What do you mean by that?

Q How were you threatened? A To disgrace my honor.

Q How did he disgrace your honor? Q Will you please point him out?

A He had sexual intercourse. A (Witness went down from the stand and went to
the accused seated in the courtroom and pointed to
Q How long did he have that sexual intercourse with the accused Timoteo Cabural). (tsn. pp. 32-35, May
you? 29, 1961 hearing)

A I do not remember how long because of my fear.
Q Did he finish having sexual intercourse with you?
A Yes, sir.
Q After he had that sexual intercourse with you, what
happened next, if any?
We agree with the lower court that Cabural alone was responsible for the rape on Agripina.
There is no evidence that his co-appellant Yangyang and the other malefactors made
advances on her. Besides, the extra-judicial confessions of Lasponia (Exhibits B, B-1, B-2 and
B3 Leonide Cabual (Exhibits C, C-1 to C-5 and Ciriaco Yangyang (Exhibits H, H-1 and H-2) point
to appellant Cabural as the mastermind and the role each of them would play (as in fact they
did) in the commission of the crime. Their interlocking confessions indicate how they would
go to the scene of the crime, the manner by which they would enter into the premises of Kim
San Milling Company and, as aptly observed by the trial court, the details which only the
participants could amply give.

A (As demonstrated by th witness, her left Arm was Further, accused Cabual and Lasponia were sworn by Fiscal Leonardo Magsalin who
pulled to stand up) instructed the PC investigators to leave the room so that they (Cabual and Lasponia) would
be able to speak their minds freely. Fiscal Magsalin testified that said accused readily and
Q Were you able to stand up? without hesitation signed their respective extra-judicial confessions.

A Yes, sir. Finally, We find no merit in the alibis interposed by appellants Cabural and Yangyang. As
pointed out by the Solicitor General in his brief:

Q After you have stood up, that man where, if any,

did he go? The fact that Cabural played mahjong with Virginia Cruz Maruhom and a
certain Gomer at the store of Ason in Barrio Maigo from 2:00 P.M. of
September 13, 1960 to 3:00 A.M. of September 14, 1960 is no guarantee
A I did not notice where the man go but I went back that he could not be at the scene of the crime (Kim San Milling Company,
to our room. situated in Palao a 37-kilometer stretch which could be negotiated in one
hour by car (tsn., p. 8, Sept. 20, 1966). Considering the confessions of
Q Upon your arrival to your quarters, what, if any, did Lasponia, Cabual and Yangyang all pointing to Cabural as the one in
you do? control of the vehicle utilized in the commission of the crime, the
conclusion is not hard to reach that his presence at the scene of the
A I told my companions. crime is much likelier than at Maigo.

Q Who were they? Otherwise stated, appellants failed to show the plausibility and verity of their alibis and the
crime is aggravated by dwelling and nighttime.
A They were Restituta Biosano, Pena Maglangit,
Catalina Biosano As aforesaid, the trial court convicted Timoteo Cabural of the crime of robbery with rape,
which is penalized by Article 294(2) of the Revised Penal Code, by reclusion temporal
medium to reclusion perpetua. Effective August 15, 1975 (or subsequent to this date),
Q That man who had sexual intercourse with you, is
Presidential Decree No. 767 imposes the penalty of reclusion perpetua to death "when the
he here now in the courtroom?
robbery accompanied with rape is committed with the use of a deadly weapon or by two or
more persons.
A Yes, sir.
In People vs. Perello, Jr., 111 SCRA 147, it was mentioned that "[t]he Chief Justice and the
herein ponente (Justice Ramon C. Aquino) are of the opinion that article 335 cannot be
applied to robbery with rape and that that offense should be penalized under article 294(2)
in which case reclusion perpetua should be imposed. As the accused was charged with a
crime against property, he should not be convicted of a crime against chastity, a private
offense. (See People vs. Olden, L-27570-71, September 20, 1972, 47 SCRA 45)." However,
also in the same case, "Justices Teehankee, Barredo and Makasiar believe that article 335
should be applied to this case. (See People vs. Carandang, L-310102, August 15, 1973, 52
SCRA 259, People vs. Mabag, L-38548, July 24, 1980, 98 SCRA 730; People vs. Arias, L-40531,
January 27, 1981, 102 SCRA 303; People vs. Boado, L- 44725, March 31, 1981, 103 SCRA 607;
People vs. Canizares L- 32515, September 10, 1981; People vs. Pizarras L-35915, October 30,
1981).
The writer of this decision is of the opinion that in robbery with rape, the accused should be
penalized under Article 294(2) of the Revised Penal Code because it is a crime against
property and not a crime against chastity a private offense.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against
both appellants.
SO ORDERED.
Aquino, Concepcion, Jr., Abad Santos, De Castro, Escolin, Vasquez and Gutierrez, Jr., JJ.,
concur.
Makasiar, J., accused Cabural should be sentenced to death under Art. 335, R. P.C.
Melencio-Herrera, J., I vote for the application of Art. 335 of the Revised Penal Code and. the
imposition of the death penalty.
Plana, J., is on leave
Separate Opinions
FERNANDO, C.J., concurring:
My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and
complete. Nonetheless, I wish to express my gratification that this Court by a decisive vote 1
sustains the basic postulate in both civil law and common law jurisdictions, expressed in the
maximum Nullum crimen nulla poena sine lege. It is undoubted, therefore, that unless there
be a radical change in the thinking of the Court, it is Article 294(2) not Article 335 of the
Revised Penal Code that calls for application in the crime of robbery with rape. 2 As noted in
the opinion of the Court penned by Justice Aquino in People v. Perello: 3 "Effective August 15,
1975 (or subsequent to this case) Presidential Decree No. 767 imposes the penalty of
reclusion perpetua to death 'when the robbery accompanied with rape is committed with the
use of a deadly weapon or by two or more persons.' That increased penalty cannot be
retroactively applied to this case. 4 As such offense of robbery was committed before that
date, it is Article 294(2), before its amendment, that supplies the governing rule. The
applicable law then is clear and explicit. It defined the offense and prescribed the penalty.
The doctrine announced in Lizarraga Hermanos v. Yap Tico 5 by Justice Moreland, in
categorical language comes to mind. Thus: "The first and fundamental duty of courts, in our
judgment, is to apply the law. Construction and interpretation come only after it has been
demonstrated that application is impossible or inadequate without them." 6 There is
relevance too to this excerpt from Kapisanan ng mga Manggagawa sa Manila Railroad
Company Credit Union Inc. v. Manila Railroad Company: 7 "The applicable provision of
Republic Act. No. 2023 quoted earlier, speaks for itself. There is no ambiguity. As thus
worded, it was so applied. Petitioner-appellant cannot therefore raise any valid objection.
For the lower court to view it otherwise would have been to alter the law. That cannot be
done by the judiciary. That is a function that properly appertains to the legislative branch. 8
Nothing more appropriately appertains to the legislative branch than the definition of a
crime and the prescription of the penalty to be imposed. That is not a doctrine of recent
vintage. It is traceable to United States v. Wiltberger, 9 an 1820 America. Supreme Court
opinion. No less than the eminent Chief Justice Marshall spoke for the Court. To quote his
exact language: "The rule that penal laws are to be construed strictly is perhaps not much
less old than construction itself. It is founded on the tenderness of the law for the rights of
individuals; and on the plain principle that the power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, not the court, which is to
define a crime, and ordain its punishment." 10 That ruling was followed in the Philippines in a
1906 decision, United States v. Almond. 11
So it has been in the Philippines since then. It was the same Justice Moreland who in United
States v. Abad Santos 12 promulgated in 1917, gave expression to a variation of such a
fundamental postulate in this wise: "Criminal statutes are to be strictly construed. No person
should be brought within their terms who is not clearly within them, nor should any act be
pronounced criminal which is not clearly made so by the statute." 13 The same year, Justice
Carson in United States v. Estapia 14 in rejecting the contention that the application of a
penal provision even if not covered by its terms should be viewed by the judiciary as
commendable, conducive as it is to the repression of a reprehensible practice" pointed out:
"To this it should be sufficient answer to say that neither the executive nor the judicial
authorities are authorized to impose fines and prison sentences in cases wherein such fines
and prison sentences are not clearly authorized by law, and this without regard to the end
sought to be attained by the enforcement of such unauthorized penalties."15
It is to be admitted that from the standpoint of logic alone, there is much to be said for the
view that since rape under certain circumstances is penalized with death, it is an affront to
reason if robbery with rape carries with it a lesser penalty. The latter offense is far more
reprehensible, ergo it must be punished at least with equal if not more severity. It is from
that perspective that in People v. Carandang 16 while the penalty imposed is that of reclusion
perpetua there were two separate opinions one from Justice Teehankee and the other from
the late Chief Justice, then Justice, Castro. They would apply Article 335 of the Revised Penal
Code. Retired Chief Justice Makalintal, now Speaker of the Batasan Pambansa, then Acting
Chief Justice, concurred in the separate opinion of the late Chief Justice Castro. Less than a
year before, however, in September of 1972, Carandang being a 1973 decision, he penned
the unanimous opinion in People v. Olden 17 affirming the joint judgment of a Court of First
Instance of Davao in two cases, one of which was robbery in band with multiple rape. It was
not the death sentence that was imposed but reclusion perpetua. 18 That case is certainly
later than People v. Obtinalia 19 decided in April of 1971, where, in a per curiam opinion,
Article 335 of the Revised Penal Code was applied, although the offense for which the
accused were found guilty was robbery with rape. It is, therefore, re-assuring that with the
decision of this case, the uncertainty which has beclouded the issue of the appropriate
imposable penalty has been removed.
One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is
in accordance with both centuries of civil law and common law tradition. Moreover, it is an
indispensable coronary to a regime of liberty enshrined in our Constitution. It is of the
essence then that while anti-social acts should be penalized, there must be a clear definition
of the punishable offense as well as the penalty that may be imposed a penalty, to repeat,
that can be fixed by the legislative body, and the legislative body alone. So constitutionalism
mandates, with its stress on jurisdiction rather than guvernaculum.The judiciary as the
dispenser of justice through law must be aware of the limitation on its own power.
Such a concept calls for undiminished respect from the judiciary. For it is the department by
which the other branches are held to strict accountability. It sees to it, in propriate cases of
course, that they are held within the bounds of their authority. Certainly, the judiciary is not
devoid of discretion., It can, to paraphrase Cardozo, fill in the gap and clear the ambiguities.
To that extent. it is free but, to recall Cardozo anew, it "is still not wholly free. [A judge] is no
to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own Ideal
of beauty or of goodness. He is to draw his inspiration from consecrated principles." 20
Tersely stated, the judiciary administers justice according to law. This is by no means to imply
that in the case at hand, justice according to law is at war with the concept of justice viewed
from the layman's standpoint. The system of criminal law followed in the Philippines, true to
the ways of constitutionalism, has always leaned toward the milder form of responsibility,
whether as to the nature of the offense or the penalty to be incurred by the wrongdoer. 21
Where, as in this case, the law speaks in clear and categorical language, such a principle is
impressed with greater weight.
TEEHANKEE, J, concurring:
I concur with the judgment at bar which affirms the trial court's decision convicting the
accused-appellant Timoteo Cabural alone of the crime of robbery with rape and imposing
upon him the proper penalty of reclusion perpetua under Article 294, par. 2 of the the
Revised Penal Code. The record and testimony of the victim of the rape show quite clearly
that Cabural alone was responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of robbery alone. There is,
therefore, no room for the application of my separate opinions in the cited cases of Perello,
Carandang, Mabag etc., that where robbery with rape is committed but the rape is qualified
by the use of a deadly weapon or is committed by two persons, either of these two actors is
singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and
mandates he imposition of the death penalty for the crime of qualified rape under Art. 335 of
the Penal Code (and not the lesser penalty of perpetua under Art. 294 for the complex crime
of robbery with rape).
Separate Opinions
FERNANDO, C.J., concurring:
My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and
complete. Nonetheless, I wish to express my gratification that this Court by a decisive vote 1
sustains the basic postulate in both civil law and common law jurisdictions, expressed in the
maximum Nullum crimen nulla poena sine lege. It is undoubted, therefore, that unless there
be a radical change in the thinking of the Court, it is Article 294(2) not Article 335 of the
Revised Penal Code that calls for application in the crime of robbery with rape. 2 As noted in
the opinion of the Court penned by Justice Aquino in People v. Perello: 3 "Effective August 15,
1975 (or subsequent to this case) Presidential Decree No. 767 imposes the penalty of
reclusion perpetua to death 'when the robbery accompanied with rape is committed with the
use of a deadly weapon or by two or more persons.' That increased penalty cannot be
retroactively applied to this case. 4 As such offense of robbery was committed before that
date, it is Article 294(2), before its amendment, that supplies the governing rule. The
applicable law then is clear and explicit. It defined the offense and prescribed the penalty.
The doctrine announced in Lizarraga Hermanos v. Yap Tico 5 by Justice Moreland, in
categorical language comes to mind. Thus: "The first and fundamental duty of courts, in our
judgment, is to apply the law. Construction and interpretation come only after it has been
demonstrated that application is impossible or inadequate without them." 6 There is
relevance too to this excerpt from Kapisanan ng mga Manggagawa sa Manila Railroad
Company Credit Union Inc. v. Manila Railroad Company: 7 "The applicable provision of
Republic Act. No. 2023 quoted earlier, speaks for itself.1äwphï1.ñët There is no ambiguity. As
thus worded, it was so applied. Petitioner-appellant cannot therefore raise any valid
objection. For the lower court to view it otherwise would have been to alter the law. That
cannot be done by the judiciary. That is a function that properly appertains to the legislative
branch. 8
Nothing more appropriately appertains to the legislative branch than the definition of a
crime and the prescription of the penalty to be imposed. That is not a doctrine of recent
vintage. It is traceable to United States v. Wiltberger, 9 an 1820 America. Supreme Court
opinion. No less than the eminent Chief Justice Marshall spoke for the Court. To quote his
exact language: "The rule that penal laws are to be construed strictly is perhaps not much
less old than construction itself. It is founded on the tenderness of the law for the rights of
individuals; and on the plain principle that the power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, not the court, which is to
define a crime, and ordain its punishment." 10 That ruling was followed in the Philippines in a
1906 decision, United States v. Almond. 11
So it has been in the Philippines since then. It was the same Justice Moreland who in United
States v. Abad Santos 12 promulgated in 1917, gave expression to a variation of such a
fundamental postulate in this wise: "Criminal statutes are to be strictly construed. No person
should be brought within their terms who is not clearly within them, nor should any act be
pronounced criminal which is not clearly made so by the statute." 13 The same year, Justice
Carson in United States v. Estapia 14 in rejecting the contention that the application of a
penal provision even if not covered by its terms should be viewed by the judiciary as
commendable, conducive as it is to the repression of a reprehensible practice" pointed out:
"To this it should be sufficient answer to say that neither the executive nor the judicial
authorities are authorized to impose fines and prison sentences in cases wherein such fines
and prison sentences are not clearly authorized by law, and this without regard to the end
sought to be attained by the enforcement of such unauthorized penalties."15
It is to be admitted that from the standpoint of logic alone, there is much to be said for the
view that since rape under certain circumstances is penalized with death, it is an affront to
reason if robbery with rape carries with it a lesser penalty. The latter offense is far more
reprehensible, ergo it must be punished at least with equal if not more severity. It is from
that perspective that in People v. Carandang 16 while the penalty imposed is that of reclusion
perpetua there were two separate opinions one from Justice Teehankee and the other from
the late Chief Justice, then Justice, Castro. They would apply Article 335 of the Revised Penal
Code. Retired Chief Justice Makalintal, now Speaker of the Batasan Pambansa, then Acting
Chief Justice, concurred in the separate opinion of the late Chief Justice Castro. Less than a
year before, however, in September of 1972, Carandang being a 1973 decision, he penned
the unanimous opinion in People v. Olden 17 affirming the joint judgment of a Court of First
Instance of Davao in two cases, one of which was robbery in band with multiple rape. It was
not the death sentence that was imposed but reclusion perpetua. 18 That case is certainly
later than People v. Obtinalia 19 decided in April of 1971, where, in a per curiam opinion,
Article 335 of the Revised Penal Code was applied, although the offense for which the
accused were found guilty was robbery with rape. It is, therefore, re-assuring that with the
decision of this case, the uncertainty which has beclouded the issue of the appropriate
imposable penalty has been removed.
Such a concept calls for undiminished respect from the judiciary. For it is the department by
which the other branches are held to strict accountability. It sees to it, in propriate cases of
course, that they are held within the bounds of their authority. Certainly, the judiciary is not
devoid of discretion., It can, to paraphrase Cardozo, fill in the gap and clear the ambiguities.
To that extent. it is free but, to recall Cardozo anew, it "is still not wholly free. [A judge] is no
to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own Ideal
of beauty or of goodness. He is to draw his inspiration from consecrated principles." 20
Tersely stated, the judiciary administers justice according to law. This is by no means to imply
that in the case at hand, justice according to law is at war with the concept of justice viewed
from the layman's standpoint. The system of criminal law followed in the Philippines, true to
the ways of constitutionalism, has always leaned toward the milder form of responsibility,
whether as to the nature of the offense or the penalty to be incurred by the wrongdoer. 21
Where, as in this case, the law speaks in clear and categorical language, such a principle is
impressed with greater weight.
TEEHANKEE, J, concurring:
I concur with the judgment at bar which affirms the trial court's decision convicting the
accused-appellant Timoteo Cabural alone of the crime of robbery with rape and imposing
upon him the proper penalty of reclusion perpetua under Article 294, par. 2 of the the
Revised Penal Code. The record and testimony of the victim of the rape show quite clearly
that Cabural alone was responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of robbery alone. There is,
therefore, no room for the application of my separate opinions in the cited cases of Perello,
Carandang, Mabag etc., that where robbery with rape is committed but the rape is qualified
by the use of a deadly weapon or is committed by two persons, either of these two actors is
singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and
mandates he imposition of the death penalty for the crime of qualified rape under Art. 335 of
the Penal Code (and not the lesser penalty of perpetua under Art. 294 for the complex crime
of robbery with rape).

One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is
in accordance with both centuries of civil law and common law tradition. Moreover, it is an
indispensable coronary to a regime of liberty enshrined in our Constitution. It is of the
essence then that while anti-social acts should be penalized, there must be a clear definition
of the punishable offense as well as the penalty that may be imposed a penalty, to repeat,
that can be fixed by the legislative body, and the legislative body alone. So constitutionalism
mandates, with its stress on jurisdiction rather than guvernaculum.The judiciary as the
dispenser of justice through law must be aware of the limitation on its own power.
 Republic of the Philippines SERENO, J.:
SUPREME COURT
Manila The public outrage over the death of Leonardo "Lenny" Villa – the victim in this case – on 10
February 1991 led to a very strong clamor to put an end to hazing.1 Due in large part to the
SECOND DIVISION brave efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his
senseless and tragic death. This widespread condemnation prompted Congress to enact a
G.R. No. 151258 February 1, 2012 special law, which became effective in 1995, that would criminalize hazing.2 The intent of the
law was to discourage members from making hazing a requirement for joining their sorority,
fraternity, organization, or association.3 Moreover, the law was meant to counteract the
ARTEMIO VILLAREAL, Petitioner,
exculpatory implications of "consent" and "initial innocent act" in the conduct of initiation
vs.
rites by making the mere act of hazing punishable or mala prohibita.4
PEOPLE OF THE PHILIPPINES, Respondent.

Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country.5 Within a
x-----------------------x
year of his death, six more cases of hazing-related deaths emerged – those of Frederick
Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe
G.R. No. 154954 Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval
Training Center; Joselito Mangga of the Philippine Merchant Marine Institute; and Joselito
PEOPLE OF THE PHILIPPINES, Petitioner, Hernandez of the University of the Philippines in Baguio City.6
vs.
The HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, Jr., Although courts must not remain indifferent to public sentiments, in this case the general
JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO condemnation of a hazing-related death, they are still bound to observe a fundamental
GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO principle in our criminal justice system – "[N]o act constitutes a crime… unless it is made so
MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE by law."7 Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large section of
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO the populace as immoral or injurious, it cannot be considered a crime, absent any law
SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, and prohibiting its commission. As interpreters of the law, judges are called upon to set aside
RONAN DE GUZMAN, Respondents. emotion, to resist being swayed by strong public sentiments, and to rule strictly based on the
elements of the offense and the facts allowed in evidence.
x-----------------------x
Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v.
G.R. No. 155101 People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and
G.R. Nos. 178057 and 178080 (Villa v. Escalona).
FIDELITO DIZON, Petitioner,
vs. Facts
PEOPLE OF THE PHILIPPINES, Respondent.
The pertinent facts, as determined by the Court of Appeals (CA)8 and the trial court,9 are as
x-----------------------x follows:

G.R. Nos. 178057 & 178080 In February 1991, seven freshmen law students of the Ateneo de Manila University School of
Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They
GERARDA H. VILLA, Petitioner, were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto
vs. Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ (neophytes).
SARUCA, Jr., and ANSELMO ADRIANO, Respondents.
On the night of 8 February 1991, the neophytes were met by some members of the Aquila
DECISION Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s
Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi, also an
Aquilan, who briefed the neophytes on what to expect during the initiation rites. The latter In Criminal Case No. C-38340(91)
were informed that there would be physical beatings, and that they could quit at any time.
Their initiation rites were scheduled to last for three days. After their "briefing," they were 1. Fidelito Dizon (Dizon)
brought to the Almeda Compound in Caloocan City for the commencement of their initiation.
2. Artemio Villareal (Villareal)
Even before the neophytes got off the van, they had already received threats and insults
from the Aquilans. As soon as the neophytes alighted from the van and walked towards the
3. Efren de Leon (De Leon)
pelota court of the Almeda compound, some of the Aquilans delivered physical blows to
them. The neophytes were then subjected to traditional forms of Aquilan "initiation rites."
These rites included the "Indian Run," which required the neophytes to run a gauntlet of two 4. Vincent Tecson (Tecson)
parallel rows of Aquilans, each row delivering blows to the neophytes; the "Bicol Express,"
which obliged the neophytes to sit on the floor with their backs against the wall and their 5. Junel Anthony Ama (Ama)
legs outstretched while the Aquilans walked, jumped, or ran over their legs; the "Rounds," in
which the neophytes were held at the back of their pants by the "auxiliaries" (the Aquilans 6. Antonio Mariano Almeda (Almeda)
charged with the duty of lending assistance to neophytes during initiation rites), while the
latter were being hit with fist blows on their arms or with knee blows on their thighs by two
Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries were given the 7. Renato Bantug, Jr. (Bantug)
opportunity to inflict physical pain on the neophytes. During this time, the neophytes were
also indoctrinated with the fraternity principles. They survived their first day of initiation. 8. Nelson Victorino (Victorino)

On the morning of their second day – 9 February 1991 – the neophytes were made to 9. Eulogio Sabban (Sabban)
present comic plays and to play rough basketball. They were also required to memorize and
recite the Aquila Fraternity’s principles. Whenever they would give a wrong answer, they 10. Joseph Lledo (Lledo)
would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the initiation
rites proper and proceeded to torment them physically and psychologically. The neophytes
11. Etienne Guerrero (Guerrero)
were subjected to the same manner of hazing that they endured on the first day of initiation.
After a few hours, the initiation for the day officially ended.
12. Michael Musngi (Musngi)
After a while, accused non-resident or alumni fraternity members10 Fidelito Dizon (Dizon)
and Artemio Villareal (Villareal) demanded that the rites be reopened. The head of initiation 13. Jonas Karl Perez (Perez)
rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal,
however, he reopened the initiation rites. The fraternity members, including Dizon and 14. Paul Angelo Santos (Santos)
Villareal, then subjected the neophytes to "paddling" and to additional rounds of physical
pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling 15. Ronan de Guzman (De Guzman)
to the ground. The neophytes heard him complaining of intense pain and difficulty in
breathing. After their last session of physical beatings, Lenny could no longer walk. He had to
16. Antonio General (General)
be carried by the auxiliaries to the carport. Again, the initiation for the day was officially
ended, and the neophytes started eating dinner. They then slept at the carport.
17. Jaime Maria Flores II (Flores)
After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and
incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they 18. Dalmacio Lim, Jr. (Lim)
thought he was just overacting. When they realized, though, that Lenny was really feeling
cold, some of the Aquilans started helping him. They removed his clothes and helped him 19. Ernesto Jose Montecillo (Montecillo)
through a sleeping bag to keep him warm. When his condition worsened, the Aquilans
rushed him to the hospital. Lenny was pronounced dead on arrival. 20. Santiago Ranada III (Ranada)

Consequently, a criminal case for homicide was filed against the following 35 Aquilans: 21. Zosimo Mendoza (Mendoza)
 22. Vicente Verdadero (Verdadero) 1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo, Guerrero,
Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada,
23. Amante Purisima II (Purisima) Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) –
were acquitted, as their individual guilt was not established by proof beyond
reasonable doubt.
24. Jude Fernandez (J. Fernandez)

2. Four of the accused-appellants – Vincent Tecson, Junel Anthony Ama, Antonio

25. Adel Abas (Abas)
Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the
crime of slight physical injuries and sentenced to 20 days of arresto menor. They
26. Percival Brigola (Brigola) were also ordered to jointly pay the heirs of the victim the sum of ₱ 30,000 as
indemnity.
In Criminal Case No. C-38340
3. Two of the accused-appellants – Fidelito Dizon and Artemio Villareal – were
1. Manuel Escalona II (Escalona) found guilty beyond reasonable doubt of the crime of homicide under Article 249
of the Revised Penal Code. Having found no mitigating or aggravating
2. Crisanto Saruca, Jr. (Saruca) circumstance, the CA sentenced them to an indeterminate sentence of 10 years of
prision mayor to 17 years of reclusion temporal. They were also ordered to
indemnify, jointly and severally, the heirs of Lenny Villa in the sum of ₱ 50,000 and
3. Anselmo Adriano (Adriano) to pay the additional amount of ₱ 1,000,000 by way of moral damages.

4. Marcus Joel Ramos (Ramos) On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against
accused Concepcion on the ground of violation of his right to speedy trial.16 Meanwhile, on
5. Reynaldo Concepcion (Concepcion) different dates between the years 2003 and 2005, the trial court denied the respective
Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.17 On 25 October 2006,
6. Florentino Ampil (Ampil) the CA in CA-G.R. SP Nos. 89060 & 9015318 reversed the trial court’s Orders and dismissed
the criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of
their right to speedy trial.19
7. Enrico de Vera III (De Vera)

From the aforementioned Decisions, the five (5) consolidated Petitions were individually
8. Stanley Fernandez (S. Fernandez)
brought before this Court.

9. Noel Cabangon (Cabangon)

G.R. No. 151258 – Villareal v. People

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried.11 On
The instant case refers to accused Villareal’s Petition for Review on Certiorari under Rule 45.
the other hand, the trial against the remaining nine accused in Criminal Case No. C-38340
The Petition raises two reversible errors allegedly committed by the CA in its Decision dated
was held in abeyance due to certain matters that had to be resolved first.12
10 January 2002 in CA-G.R. No. 15520 – first, denial of due process; and, second, conviction
absent proof beyond reasonable doubt.20
On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91),
holding the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized
While the Petition was pending before this Court, counsel for petitioner Villareal filed a
with reclusion temporal under Article 249 of the Revised Penal Code.13 A few weeks after
Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died
the trial court rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340
on 13 March 2011. Counsel thus asserts that the subject matter of the Petition previously
against the remaining nine accused commenced anew.14
filed by petitioner does not survive the death of the accused.

On 10 January 2002, the CA in (CA-G.R. No. 15520)15 set aside the finding of conspiracy by
G.R. No. 155101 – Dizon v. People
the trial court in Criminal Case No. C-38340(91) and modified the criminal liability of each of
the accused according to individual participation. Accused De Leon had by then passed away,
so the following Decision applied only to the remaining 25 accused, viz:
Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA’s Decision
dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520.21
Petitioner sets forth two main issues – first, that he was denied due process when the CA
sustained the trial court’s forfeiture of his right to present evidence; and, second, that he was
deprived of due process when the CA did not apply to him the same "ratio decidendi that
served as basis of acquittal of the other accused."22
As regards the first issue, the trial court made a ruling, which forfeited Dizon’s right to
present evidence during trial. The trial court expected Dizon to present evidence on an
earlier date since a co-accused, Antonio General, no longer presented separate evidence
during trial. According to Dizon, his right should not have been considered as waived because
he was justified in asking for a postponement. He argues that he did not ask for a resetting of
any of the hearing dates and in fact insisted that he was ready to present evidence on the
original pre-assigned schedule, and not on an earlier hearing date.
Regarding the second issue, petitioner contends that he should have likewise been acquitted,
like the other accused, since his acts were also part of the traditional initiation rites and were
not tainted by evil motives.23 He claims that the additional paddling session was part of the
official activity of the fraternity. He also points out that one of the neophytes admitted that
the chairperson of the initiation rites "decided that [Lenny] was fit enough to undergo the
initiation so Mr. Villareal proceeded to do the paddling…."24 Further, petitioner echoes the
argument of the Solicitor General that "the individual blows inflicted by Dizon and Villareal
could not have resulted in Lenny’s death."25 The Solicitor General purportedly averred that,
"on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could not be
considered fatal if taken individually, but if taken collectively, the result is the violent death
of the victim."26
Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that
Lenny’s father could not have stolen the parking space of Dizon’s father, since the latter did
not have a car, and their fathers did not work in the same place or office. Revenge for the
loss of the parking space was the alleged ill motive of Dizon. According to petitioner, his
utterances regarding a stolen parking space were only part of the "psychological initiation."
He then cites the testimony of Lenny’s co-neophyte – witness Marquez – who admitted
knowing "it was not true and that he was just making it up…."27
Further, petitioner argues that his alleged motivation of ill will was negated by his show of
concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the
neophytes, who mentioned that the former had kicked the leg of the neophyte and told him
to switch places with Lenny to prevent the latter’s chills. When the chills did not stop, Dizon,
together with Victorino, helped Lenny through a sleeping bag and made him sit on a chair.
According to petitioner, his alleged ill motivation is contradicted by his manifestation of
compassion and concern for the victim’s well-being.
G.R. No. 154954 – People v. Court of Appeals
This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s Decision dated 10
January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it
acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the
lesser crime of slight physical injuries.28 According to the Solicitor General, the CA erred in
holding that there could have been no conspiracy to commit hazing, as hazing or fraternity
initiation had not yet been criminalized at the time Lenny died.
In the alternative, petitioner claims that the ruling of the trial court should have been upheld,
inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the
injuries led to the victim’s death, petitioner posits that the accused Aquilans are criminally
liable for the resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code.29
The said article provides: "Criminal liability shall be incurred… [b]y any person committing a
felony (delito) although the wrongful act done be different from that which he intended."
Petitioner also argues that the rule on double jeopardy is inapplicable. According to the
Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or excess of
jurisdiction, in setting aside the trial court’s finding of conspiracy and in ruling that the
criminal liability of all the accused must be based on their individual participation in the
commission of the crime.
G.R. Nos. 178057 and 178080 – Villa v. Escalona
Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of
the CA’s Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P.
Nos. 89060 and 90153.30 The Petition involves the dismissal of the criminal charge filed
against Escalona, Ramos, Saruca, and Adriano.
Due to "several pending incidents," the trial court ordered a separate trial for accused
Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon
(Criminal Case No. C-38340) to commence after proceedings against the 26 other accused in
Criminal Case No. C-38340(91) shall have terminated. On 8 November 1993, the trial court
found the 26 accused guilty beyond reasonable doubt. As a result, the proceedings in
Criminal Case No. C-38340 involving the nine other co-accused recommenced on 29
November 1993. For "various reasons," the initial trial of the case did not commence until 28
March 2005, or almost 12 years after the arraignment of the nine accused.
Petitioner Villa assails the CA’s dismissal of the criminal case involving 4 of the 9 accused,
namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert
their right to speedy trial within a reasonable period of time. She also points out that the
prosecution cannot be faulted for the delay, as the original records and the required
evidence were not at its disposal, but were still in the appellate court.
We resolve herein the various issues that we group into five.
Issues
1. Whether the forfeiture of petitioner Dizon’s right to present evidence
constitutes denial of due process;
 2. Whether the CA committed grave abuse of discretion, amounting to lack or
excess of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca,
and Adriano for violation of the right of the accused to speedy trial;
3. Whether the CA committed grave abuse of discretion, amounting to lack or
excess of jurisdiction, when it set aside the finding of conspiracy by the trial court
and adjudicated the liability of each accused according to individual participation;
4. Whether accused Dizon is guilty of homicide; and
5. Whether the CA committed grave abuse of discretion when it pronounced
Tecson, Ama, Almeda, and Bantug guilty only of slight physical injuries.
Discussion
Resolution on Preliminary Matters
G.R. No. 151258 – Villareal v. People
In a Notice dated 26 September 2011 and while the Petition was pending resolution, this
Court took note of counsel for petitioner’s Notice of Death of Party.
According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is
totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary
penalties is extinguished if the offender dies prior to final judgment. The term "personal
penalties" refers to the service of personal or imprisonment penalties,31 while the term
"pecuniary penalties" (las pecuniarias) refers to fines and costs,32 including civil liability
predicated on the criminal offense complained of (i.e., civil liability ex delicto).33 However,
civil liability based on a source of obligation other than the delict survives the death of the
accused and is recoverable through a separate civil action.34
Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both
personal and pecuniary penalties, including his civil liability directly arising from the delict
complained of. Consequently, his Petition is hereby dismissed, and the criminal case against
him deemed closed and terminated.
G.R. No. 155101 (Dizon v. People)
In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for
accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of
October 1993.35 The Order likewise stated that "it will not entertain any postponement and
that all the accused who have not yet presented their respective evidence should be ready at
all times down the line, with their evidence on all said dates. Failure on their part to present
evidence when required shall therefore be construed as waiver to present evidence."36
However, on 19 August 1993, counsel for another accused manifested in open court that his
client – Antonio General – would no longer present separate evidence. Instead, the counsel
would adopt the testimonial evidence of the other accused who had already testified.37
Because of this development and pursuant to the trial court’s Order that the parties "should
be ready at all times down the line," the trial court expected Dizon to present evidence on
the next trial date – 25 August 1993 – instead of his originally assigned dates. The original
dates were supposed to start two weeks later, or on 8 September 1993.38 Counsel for
accused Dizon was not able to present evidence on the accelerated date. To address the
situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a
previously scheduled case, and that he would be ready to present evidence on the dates
originally assigned to his clients.39 The trial court denied the Manifestation on the same date
and treated the Constancia as a motion for postponement, in violation of the three-day-
notice rule under the Rules of Court.40 Consequently, the trial court ruled that the failure of
Dizon to present evidence amounted to a waiver of that right.41
Accused-petitioner Dizon thus argues that he was deprived of due process of law when the
trial court forfeited his right to present evidence. According to him, the postponement of the
25 August 1993 hearing should have been considered justified, since his original pre-assigned
trial dates were not supposed to start until 8 September 1993, when he was scheduled to
present evidence. He posits that he was ready to present evidence on the dates assigned to
him. He also points out that he did not ask for a resetting of any of the said hearing dates;
that he in fact insisted on being allowed to present evidence on the dates fixed by the trial
court. Thus, he contends that the trial court erred in accelerating the schedule of
presentation of evidence, thereby invalidating the finding of his guilt.
The right of the accused to present evidence is guaranteed by no less than the Constitution
itself.42 Article III, Section 14(2) thereof, provides that "in all criminal prosecutions, the
accused … shall enjoy the right to be heard by himself and counsel…" This constitutional right
includes the right to present evidence in one’s defense,43 as well as the right to be present
and defend oneself in person at every stage of the proceedings.44
In Crisostomo v. Sandiganbayan,45 the Sandiganbayan set the hearing of the defense’s
presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was
cancelled due to "lack of quorum in the regular membership" of the Sandiganbayan’s Second
Division and upon the agreement of the parties. The hearing was reset for the next day, 22
June 1995, but Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very
same day, issued an Order directing the issuance of a warrant for the arrest of Crisostomo
and the confiscation of his surety bond. The Order further declared that he had waived his
right to present evidence because of his nonappearance at "yesterday’s and today’s
scheduled hearings." In ruling against the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo’s
non-appearance during the 22 June 1995 trial was merely a waiver of his right to be present
for trial on such date only and not for the succeeding trial dates…
xxx xxx xxx
Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not have been deemed
as a waiver of his right to present evidence. While constitutional rights may be waived, such
waiver must be clear and must be coupled with an actual intention to relinquish the right.
Crisostomo did not voluntarily waive in person or even through his counsel the right to
present evidence. The Sandiganbayan imposed the waiver due to the agreement of the
prosecution, Calingayan, and Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the present case, the
court is called upon to see to it that the accused is personally made aware of the
consequences of a waiver of the right to present evidence. In fact, it is not enough that the
accused is simply warned of the consequences of another failure to attend the succeeding
hearings. The court must first explain to the accused personally in clear terms the exact
nature and consequences of a waiver. Crisostomo was not even forewarned. The
Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence
without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing.
Clearly, the waiver of the right to present evidence in a criminal case involving a grave
penalty is not assumed and taken lightly. The presence of the accused and his counsel is
indispensable so that the court could personally conduct a searching inquiry into the waiver x
x x.46 (Emphasis supplied)
The trial court should not have deemed the failure of petitioner to present evidence on 25
August 1993 as a waiver of his right to present evidence. On the contrary, it should have
considered the excuse of counsel justified, especially since counsel for another accused –
General – had made a last-minute adoption of testimonial evidence that freed up the
succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later. At
any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If it
really wanted to impose its Order strictly, the most it could have done was to forfeit one out
of the five days set for Dizon’s testimonial evidence. Stripping the accused of all his pre-
assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due
process.
Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to
present evidence and be heard does not per se work to vacate a finding of guilt in the
criminal case or to enforce an automatic remand of the case to the trial court.47 In People v.
Bodoso, we ruled that where facts have adequately been represented in a criminal case, and
no procedural unfairness or irregularity has prejudiced either the prosecution or the defense
as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless be upheld if
the judgment is supported beyond reasonable doubt by the evidence on record.48
We do not see any material inadequacy in the relevant facts on record to resolve the case at
bar. Neither can we see any "procedural unfairness or irregularity" that would substantially
prejudice either the prosecution or the defense as a result of the invalid waiver. In fact, the
arguments set forth by accused Dizon in his Petition corroborate the material facts relevant
to decide the matter. Instead, what he is really contesting in his Petition is the application of
the law to the facts by the trial court and the CA. Petitioner Dizon admits direct participation
in the hazing of Lenny Villa by alleging in his Petition that "all actions of the petitioner were
part of the traditional rites," and that "the alleged extension of the initiation rites was not
outside the official activity of the fraternity."49 He even argues that "Dizon did not request
for the extension and he participated only after the activity was sanctioned."50
For one reason or another, the case has been passed or turned over from one judge or
justice to another – at the trial court, at the CA, and even at the Supreme Court. Remanding
the case for the reception of the evidence of petitioner Dizon would only inflict further
injustice on the parties. This case has been going on for almost two decades. Its resolution is
long overdue. Since the key facts necessary to decide the case have already been
determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)
Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not
have been dismissed, since they failed to assert their right to speedy trial within a reasonable
period of time. She points out that the accused failed to raise a protest during the dormancy
of the criminal case against them, and that they asserted their right only after the trial court
had dismissed the case against their co-accused Concepcion. Petitioner also emphasizes that
the trial court denied the respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and
Adriano, because it found that "the prosecution could not be faulted for the delay in the
movement of this case when the original records and the evidence it may require were not at
its disposal as these were in the Court of Appeals."51
The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article
III of the 1987 Constitution.52 This right requires that there be a trial free from vexatious,
capricious or oppressive delays.53 The right is deemed violated when the proceeding is
attended with unjustified postponements of trial, or when a long period of time is allowed to
elapse without the case being tried and for no cause or justifiable motive.54 In determining
the right of the accused to speedy trial, courts should do more than a mathematical
computation of the number of postponements of the scheduled hearings of the case.55 The
conduct of both the prosecution and the defense must be weighed.56 Also to be considered
are factors such as the length of delay, the assertion or non-assertion of the right, and the
prejudice wrought upon the defendant.57
We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the
right of the accused to speedy trial is tantamount to acquittal.58 As a consequence, an
appeal or a reconsideration of the dismissal would amount to a violation of the principle of
double jeopardy.59 As we have previously discussed, however, where the dismissal of the
case is capricious, certiorari lies.60 The rule on double jeopardy is not triggered when a
petition challenges the validity of the order of dismissal instead of the correctness thereof.61
Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction
prevents double jeopardy from attaching.62
We do not see grave abuse of discretion in the CA’s dismissal of the case against accused
Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy
trial. The court held thus:
An examination of the procedural history of this case would reveal that the following factors
contributed to the slow progress of the proceedings in the case below:
xxx xxx xxx
5) The fact that the records of the case were elevated to the Court of Appeals and the
prosecution’s failure to comply with the order of the court a quo requiring them to secure
certified true copies of the same.
xxx xxx xxx
While we are prepared to concede that some of the foregoing factors that contributed to the
delay of the trial of the petitioners are justifiable, We nonetheless hold that their right to
speedy trial has been utterly violated in this case x x x.
xxx xxx xxx
[T]he absence of the records in the trial court [was] due to the fact that the records of the
case were elevated to the Court of Appeals, and the prosecution’s failure to comply with the
order of the court a quo requiring it to secure certified true copies of the same. What is
glaring from the records is the fact that as early as September 21, 1995, the court a quo
already issued an Order requiring the prosecution, through the Department of Justice, to
secure the complete records of the case from the Court of Appeals. The prosecution did not
comply with the said Order as in fact, the same directive was repeated by the court a quo in
an Order dated December 27, 1995. Still, there was no compliance on the part of the
prosecution. It is not stated when such order was complied with. It appears, however, that
even until August 5, 2002, the said records were still not at the disposal of the trial court
because the lack of it was made the basis of the said court in granting the motion to dismiss
filed by co-accused Concepcion x x x.
xxx xxx xxx
It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of
almost seven years, there was no action at all on the part of the court a quo. Except for the
pleadings filed by both the prosecution and the petitioners, the latest of which was on
January 29, 1996, followed by petitioner Saruca’s motion to set case for trial on August 17,
1998 which the court did not act upon, the case remained dormant for a considerable length
of time. This prolonged inactivity whatsoever is precisely the kind of delay that the
constitution frowns upon x x x.63 (Emphasis supplied)
This Court points out that on 10 January 1992, the final amended Information was filed
against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and
De Vera.64 On 29 November 1993, they were all arraigned.65 Unfortunately, the initial trial
of the case did not commence until 28 March 2005 or almost 12 years after arraignment.66
As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity
of the Sandiganbayan for close to five years since the arraignment of the accused amounts to
an unreasonable delay in the disposition of cases – a clear violation of the right of the
accused to a speedy disposition of cases.67 Thus, we held:
The delay in this case measures up to the unreasonableness of the delay in the disposition of
cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the
Ombudsman in resolving the criminal complaints to be violative of the constitutionally
guaranteed right to a speedy disposition of cases; similarly, in Roque vs. Office of the
Ombudsman, where the Court held that the delay of almost six years disregarded the
Ombudsman's duty to act promptly on complaints before him; and in Cervantes vs.
Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its discretion in
not quashing the information which was filed six years after the initiatory complaint was filed
and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be
in the instant case, where the reinvestigation by the Ombudsman has dragged on for a
decade already.68 (Emphasis supplied)
From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that
accused Escalona et al.’s right to speedy trial was violated. Since there is nothing in the
records that would show that the subject of this Petition includes accused Ampil, S.
Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused
Escalona, Ramos, Saruca, and Adriano.
G.R. No. 154954 (People v. Court of Appeals)
The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that
when a person is charged with an offense, and the case is terminated – either by acquittal or
conviction or in any other manner without the consent of the accused – the accused cannot
again be charged with the same or an identical offense.69 This principle is founded upon the
law of reason, justice and conscience.70 It is embodied in the civil law maxim non bis in idem
found in the common law of England and undoubtedly in every system of jurisprudence.71 It
found expression in the Spanish Law, in the Constitution of the United States, and in our own
Constitution as one of the fundamental rights of the citizen,72 viz:
Article III – Bill of Rights
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If
an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional
right, provides as follows:73
SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain a conviction
and after the accused had pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution for the offense charged, or
for any attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former complaint
or information.
The rule on double jeopardy thus prohibits the state from appealing the judgment in order to
reverse the acquittal or to increase the penalty imposed either through a regular appeal
under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of
law under Rule 45 of the same Rules.74 The requisites for invoking double jeopardy are the
following: (a) there is a valid complaint or information; (b) it is filed before a competent
court; (c) the defendant pleaded to the charge; and (d) the defendant was acquitted or
convicted, or the case against him or her was dismissed or otherwise terminated without the
defendant’s express consent.75
As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is
immediately final and a reexamination of the merits of such acquittal, even in the appellate
courts, will put the accused in jeopardy for the same offense. The finality-of-acquittal
doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal
processes as an instrument of harassment to wear out the accused by a multitude of cases
with accumulated trials. It also serves the additional purpose of precluding the State,
following an acquittal, from successively retrying the defendant in the hope of securing a
conviction. And finally, it prevents the State, following conviction, from retrying the
defendant again in the hope of securing a greater penalty."76 We further stressed that "an
acquitted defendant is entitled to the right of repose as a direct consequence of the finality
of his acquittal."77
This prohibition, however, is not absolute. The state may challenge the lower court’s
acquittal of the accused or the imposition of a lower penalty on the latter in the following
recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to
prosecute and prove its case, tantamount to a deprivation of due process;78 (2) where there
is a finding of mistrial;79 or (3) where there has been a grave abuse of discretion.80
The third instance refers to this Court’s judicial power under Rule 65 to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government.81 Here, the party asking for
the review must show the presence of a whimsical or capricious exercise of judgment
equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an
evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in
contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of
passion and hostility;82 or a blatant abuse of authority to a point so grave and so severe as to
deprive the court of its very power to dispense justice.83 In such an event, the accused
cannot be considered to be at risk of double jeopardy.84
The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the
acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight
physical injuries, both on the basis of a misappreciation of facts and evidence. According to
the Petition, "the decision of the Court of Appeals is not in accordance with law because
private complainant and petitioner were denied due process of law when the public
respondent completely ignored the a) Position Paper x x x b) the Motion for Partial
Reconsideration x x x and c) the petitioner’s Comment x x x."85 Allegedly, the CA ignored
evidence when it adopted the theory of individual responsibility; set aside the finding of
conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code.86 The
Solicitor General also assails the finding that the physical blows were inflicted only by Dizon
and Villareal, as well as the appreciation of Lenny Villa’s consent to hazing.87
In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the
probative value of the evidence presented by the parties.88 In People v. Maquiling, we held
that grave abuse of discretion cannot be attributed to a court simply because it allegedly
misappreciated the facts and the evidence.89 Mere errors of judgment are correctible by an
appeal or a petition for review under Rule 45 of the Rules of Court, and not by an application
for a writ of certiorari.90 Therefore, pursuant to the rule on double jeopardy, we are
constrained to deny the Petition contra Victorino et al. – the 19 acquitted fraternity
members.
We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug –
the four fraternity members convicted of slight physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies
when the state seeks the imposition of a higher penalty against the accused.91 We have also
recognized, however, that certiorari may be used to correct an abusive judgment upon a
clear demonstration that the lower court blatantly abused its authority to a point so grave as
to deprive it of its very power to dispense justice.92 The present case is one of those
instances of grave abuse of discretion.
In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the
CA reasoned thus:
Based on the medical findings, it would appear that with the exclusion of the fatal wounds
inflicted by the accused Dizon and Villareal, the injuries sustained by the victim as a result of
the physical punishment heaped on him were serious in nature. However, by reason of the
death of the victim, there can be no precise means to determine the duration of the
incapacity or the medical attendance required. To do so, at this stage would be merely
speculative. In a prosecution for this crime where the category of the offense and the
severity of the penalty depend on the period of illness or incapacity for labor, the length of
this period must likewise be proved beyond reasonable doubt in much the same manner as
the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof
of the said period is absent, the crime committed should be deemed only as slight physical
injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As
such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson,
Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature.93 (Emphasis supplied
and citations included)
The appellate court relied on our ruling in People v. Penesa94 in finding that the four accused
should be held guilty only of slight physical injuries. According to the CA, because of "the
death of the victim, there can be no precise means to determine the duration of the
incapacity or medical attendance required."95 The reliance on Penesa was utterly misplaced.
A review of that case would reveal that the accused therein was guilty merely of slight
physical injuries, because the victim’s injuries neither caused incapacity for labor nor
required medical attendance.96 Furthermore, he did not die.97 His injuries were not even
serious.98 Since Penesa involved a case in which the victim allegedly suffered physical
injuries and not death, the ruling cited by the CA was patently inapplicable.
On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda, and Bantug were
liable merely for slight physical injuries grossly contradicts its own findings of fact. According
to the court, the four accused "were found to have inflicted more than the usual punishment
undertaken during such initiation rites on the person of Villa."99 It then adopted the NBI
medico-legal officer’s findings that the antecedent cause of Lenny Villa’s death was the
"multiple traumatic injuries" he suffered from the initiation rites.100 Considering that the CA
found that the "physical punishment heaped on [Lenny Villa was] serious in nature,"101 it
was patently erroneous for the court to limit the criminal liability to slight physical injuries,
which is a light felony.
Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the
consequences of an act, even if its result is different from that intended. Thus, once a person
is found to have committed an initial felonious act, such as the unlawful infliction of physical
injuries that results in the death of the victim, courts are required to automatically apply the
legal framework governing the destruction of life. This rule is mandatory, and not subject to
discretion.
The CA’s application of the legal framework governing physical injuries – punished under
Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies – is therefore
tantamount to a whimsical, capricious, and abusive exercise of judgment amounting to lack
of jurisdiction. According to the Revised Penal Code, the mandatory and legally imposable
penalty in case the victim dies should be based on the framework governing the destruction
of the life of a person, punished under Articles 246 to 261 for intentional felonies and Article
365 for culpable felonies, and not under the aforementioned provisions. We emphasize that
these two types of felonies are distinct from and legally inconsistent with each other, in that
the accused cannot be held criminally liable for physical injuries when actual death
occurs.102
Attributing criminal liability solely to Villareal and Dizon – as if only their acts, in and of
themselves, caused the death of Lenny Villa – is contrary to the CA’s own findings. From
proof that the death of the victim was the cumulative effect of the multiple injuries he
suffered,103 the only logical conclusion is that criminal responsibility should redound to all
those who have been proven to have directly participated in the infliction of physical injuries
on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest.
Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or
excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight
physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give
due course to the Petition in G.R. No. 154954.
Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time) punishable as a crime, the
intentional infliction of physical injuries on Villa was nonetheless a felonious act under
Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused, the court a
quo found that pursuant to Article 4(1) of the Revised Penal Code, the accused fraternity
members were guilty of homicide, as it was the direct, natural and logical consequence of the
physical injuries they had intentionally inflicted.104
The CA modified the trial court’s finding of criminal liability. It ruled that there could have
been no conspiracy since the neophytes, including Lenny Villa, had knowingly consented to
the conduct of hazing during their initiation rites. The accused fraternity members, therefore,
were liable only for the consequences of their individual acts. Accordingly, 19 of the accused
– Victorino et al. – were acquitted; 4 of them – Tecson et al. – were found guilty of slight
physical injuries; and the remaining 2 – Dizon and Villareal – were found guilty of homicide.
The issue at hand does not concern a typical criminal case wherein the perpetrator clearly
commits a felony in order to take revenge upon, to gain advantage over, to harm maliciously,
or to get even with, the victim. Rather, the case involves an ex ante situation in which a man
– driven by his own desire to join a society of men – pledged to go through physically and
psychologically strenuous admission rituals, just so he could enter the fraternity. Thus, in
order to understand how our criminal laws apply to such situation absent the Anti-Hazing
Law, we deem it necessary to make a brief exposition on the underlying concepts shaping
intentional felonies, as well as on the nature of physical and psychological initiations widely
known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of thought.105 The classical theory
posits that a human person is essentially a moral creature with an absolute free will to
choose between good and evil.106 It asserts that one should only be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired.107 The basic
postulate of the classical penal system is that humans are rational and calculating beings who
guide their actions with reference to the principles of pleasure and pain.108 They refrain
from criminal acts if threatened with punishment sufficient to cancel the hope of possible
gain or advantage in committing the crime.109 Here, criminal liability is thus based on the
free will and moral blame of the actor.110 The identity of mens rea – defined as a guilty
mind, a guilty or wrongful purpose or criminal intent – is the predominant consideration.111
Thus, it is not enough to do what the law prohibits.112 In order for an intentional felony to
exist, it is necessary that the act be committed by means of dolo or "malice."113
The term "dolo" or "malice" is a complex idea involving the elements of freedom,
intelligence, and intent.114 The first element, freedom, refers to an act done with
deliberation and with power to choose between two things.115 The second element,
intelligence, concerns the ability to determine the morality of human acts, as well as the
capacity to distinguish between a licit and an illicit act.116 The last element, intent, involves
an aim or a determination to do a certain act.117
The element of intent – on which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act.118 It refers to the purpose of the mind and
the resolve with which a person proceeds.119 It does not refer to mere will, for the latter
pertains to the act, while intent concerns the result of the act.120 While motive is the
"moving power" that impels one to action for a definite result, intent is the "purpose" of
using a particular means to produce the result.121 On the other hand, the term "felonious"
means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose.122
With these elements taken together, the requirement of intent in intentional felony must
refer to malicious intent, which is a vicious and malevolent state of mind accompanying a
forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus –
that the act or omission be done "willfully," "maliciously," "with deliberate evil intent," and
"with malice aforethought."123 The maxim is actus non facit reum, nisi mens sit rea – a crime
is not committed if the mind of the person performing the act complained of is innocent.124
As is required of the other elements of a felony, the existence of malicious intent must be
proven beyond reasonable doubt.125
In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article
8 of the Revised Penal Code – which provides that "conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit
it" – is to be interpreted to refer only to felonies committed by means of dolo or malice. The
phrase "coming to an agreement" connotes the existence of a prefaced "intent" to cause
injury to another, an element present only in intentional felonies. In culpable felonies or
criminal negligence, the injury inflicted on another is unintentional, the wrong done being
simply the result of an act performed without malice or criminal design.126 Here, a person
performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or
lack of skill, the deed results in a wrongful act.127 Verily, a deliberate intent to do an
unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a felony
committed by means of culpa.128
The presence of an initial malicious intent to commit a felony is thus a vital ingredient in
establishing the commission of the intentional felony of homicide.129 Being mala in se, the
felony of homicide requires the existence of malice or dolo130 immediately before or
simultaneously with the infliction of injuries.131 Intent to kill – or animus interficendi –
cannot and should not be inferred, unless there is proof beyond reasonable doubt of such
intent.132 Furthermore, the victim’s death must not have been the product of accident,
natural cause, or suicide.133 If death resulted from an act executed without malice or
criminal intent – but with lack of foresight, carelessness, or negligence – the act must be
qualified as reckless or simple negligence or imprudence resulting in homicide.134
Hazing and other forms of initiation rites
The notion of hazing is not a recent development in our society.135 It is said that, throughout
history, hazing in some form or another has been associated with organizations ranging from
military groups to indigenous tribes.136 Some say that elements of hazing can be traced back
to the Middle Ages, during which new students who enrolled in European universities
worked as servants for upperclassmen.137 It is believed that the concept of hazing is rooted
in ancient Greece,138 where young men recruited into the military were tested with pain or
challenged to demonstrate the limits of their loyalty and to prepare the recruits for
battle.139 Modern fraternities and sororities espouse some connection to these values of
ancient Greek civilization.140 According to a scholar, this concept lends historical legitimacy
to a "tradition" or "ritual" whereby prospective members are asked to prove their worthiness
and loyalty to the organization in which they seek to attain membership through hazing.141
Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join
an organization to receive an invitation in order to be a neophyte for a particular chapter.142
The neophyte period is usually one to two semesters long.143 During the "program,"
neophytes are required to interview and to get to know the active members of the chapter;
to learn chapter history; to understand the principles of the organization; to maintain a
specified grade point average; to participate in the organization’s activities; and to show
dignity and respect for their fellow neophytes, the organization, and its active and alumni
members.144 Some chapters require the initiation activities for a recruit to involve hazing
acts during the entire neophyte stage.145
Hazing, as commonly understood, involves an initiation rite or ritual that serves as
prerequisite for admission to an organization.146 In hazing, the "recruit," "pledge,"
"neophyte," "initiate," "applicant" – or any other term by which the organization may refer
to such a person – is generally placed in embarrassing or humiliating situations, like being
forced to do menial, silly, foolish, or other similar tasks or activities.147 It encompasses
different forms of conduct that humiliate, degrade, abuse, or physically endanger those who
desire membership in the organization.148 These acts usually involve physical or
psychological suffering or injury.149
The concept of initiation rites in the country is nothing new. In fact, more than a century ago,
our national hero – Andres Bonifacio – organized a secret society named Kataastaasan
Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable
Association of the Sons and Daughters of the Nation).150 The Katipunan, or KKK, started as a
small confraternity believed to be inspired by European Freemasonry, as well as by
confraternities or sodalities approved by the Catholic Church.151 The Katipunan’s ideology
was brought home to each member through the society’s initiation ritual.152 It is said that
initiates were brought to a dark room, lit by a single point of illumination, and were asked a
series of questions to determine their fitness, loyalty, courage, and resolve.153 They were
made to go through vigorous trials such as "pagsuot sa isang lungga" or "[pagtalon] sa
balon."154 It would seem that they were also made to withstand the blow of "pangherong
bakal sa pisngi" and to endure a "matalas na punyal."155 As a final step in the ritual, the
neophyte Katipunero was made to sign membership papers with the his own blood.156
It is believed that the Greek fraternity system was transported by the Americans to the
Philippines in the late 19th century. As can be seen in the following instances, the manner of
hazing in the United States was jarringly similar to that inflicted by the Aquila Fraternity on
Lenny Villa.
Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do
exhausting physical exercises that sometimes resulted in permanent physical damage; to eat
or drink unpalatable foods; and in various ways to humiliate themselves.157 In 1901, General
Douglas MacArthur got involved in a congressional investigation of hazing at the academy
during his second year at West Point.158
In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured
during the shriner’s hazing event, which was part of the initiation ceremonies for Hejaz
membership.159 The ritual involved what was known as the "mattress-rotating barrel
trick."160 It required each candidate to slide down an eight to nine-foot-high metal board
onto connected mattresses leading to a barrel, over which the candidate was required to
climb.161 Members of Hejaz would stand on each side of the mattresses and barrel and fun-
paddle candidates en route to the barrel.162
In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina,
were seen performing a ceremony in which they pinned paratrooper jump wings directly
onto the neophyte paratroopers’ chests.163 The victims were shown writhing and crying out
in pain as others pounded the spiked medals through the shirts and into the chests of the
victims.164
In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa
Alpha Psi invited male students to enter into a pledgeship program.165 The fraternity
members subjected the pledges to repeated physical abuse including repeated, open-hand
strikes at the nape, the chest, and the back; caning of the bare soles of the feet and buttocks;
blows to the back with the use of a heavy book and a cookie sheet while the pledges were on
their hands and knees; various kicks and punches to the body; and "body slamming," an
activity in which active members of the fraternity lifted pledges up in the air and dropped
them to the ground.166 The fraternity members then put the pledges through a seven-
station circle of physical abuse.167
In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity
members of the Kappa Alpha Order at the Auburn University in Alabama.168 The hazing
included the following: (1) having to dig a ditch and jump into it after it had been filled with
water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3)
being pushed and kicked, often onto walls or into pits and trash cans; (4) eating foods like
peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce, mayonnaise, butter, beans,
and other items); (5) doing chores for the fraternity and its members, such as cleaning the
fraternity house and yard, being designated as driver, and running errands; (6) appearing
regularly at 2 a.m. "meetings," during which the pledges would be hazed for a couple of
hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and hit
as they ran down a hallway and descended down a flight of stairs.169
In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim – Sylvester Lloyd – was
accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity.170 He
participated in initiation activities, which included various forms of physical beatings and
torture, psychological coercion and embarrassment.171
In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries
from hazing activities during the fraternity’s initiation rites.172 Kenner and the other initiates
went through psychological and physical hazing, including being paddled on the buttocks for
more than 200 times.173
In Morton v. State, Marcus Jones – a university student in Florida – sought initiation into the
campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year.174 The
pledge’s efforts to join the fraternity culminated in a series of initiation rituals conducted in
four nights. Jones, together with other candidates, was blindfolded, verbally harassed, and
caned on his face and buttocks.175 In these rituals described as "preliminaries," which lasted
for two evenings, he received approximately 60 canings on his buttocks.176 During the last
two days of the hazing, the rituals intensified.177 The pledges sustained roughly 210 cane
strikes during the four-night initiation.178 Jones and several other candidates passed out.179
The purported raison d’être behind hazing practices is the proverbial "birth by fire," through
which the pledge who has successfully withstood the hazing proves his or her worth.180
Some organizations even believe that hazing is the path to enlightenment. It is said that this
process enables the organization to establish unity among the pledges and, hence, reinforces
and ensures the future of the organization.181 Alleged benefits of joining include leadership
opportunities; improved academic performance; higher self-esteem; professional networking
opportunities; and the esprit d’corp associated with close, almost filial, friendship and
common cause.182
Anti-Hazing laws in the U.S.
The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.183
The hazing of recruits and plebes in the armed services was so prevalent that Congress
prohibited all forms of military hazing, harmful or not.184 It was not until 1901 that Illinois
passed the first state anti-hazing law, criminalizing conduct "whereby any one sustains an
injury to his [or her] person therefrom."185
However, it was not until the 1980s and 1990s, due in large part to the efforts of the
Committee to Halt Useless College Killings and other similar organizations, that states
increasingly began to enact legislation prohibiting and/or criminalizing hazing.186 As of 2008,
all but six states had enacted criminal or civil statutes proscribing hazing.187 Most anti-
hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively light consequences
for even the most severe situations.188 Only a few states with anti-hazing laws consider
hazing as a felony in case death or great bodily harm occurs.189
Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in
death or great bodily harm, which is a Class 4 felony.190 In a Class 4 felony, a sentence of
imprisonment shall be for a term of not less than one year and not more than three
years.191 Indiana criminal law provides that a person who recklessly, knowingly, or
intentionally performs hazing that results in serious bodily injury to a person commits
criminal recklessness, a Class D felony.192
The offense becomes a Class C felony if committed by means of a deadly weapon.193 As an
element of a Class C felony – criminal recklessness – resulting in serious bodily injury, death
falls under the category of "serious bodily injury."194 A person who commits a Class C felony
is imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory
sentence being four (4) years.195 Pursuant to Missouri law, hazing is a Class A misdemeanor,
unless the act creates a substantial risk to the life of the student or prospective member, in
which case it becomes a Class C felony.196 A Class C felony provides for an imprisonment
term not to exceed seven years.197
In Texas, hazing that causes the death of another is a state jail felony.198 An individual
adjudged guilty of a state jail felony is punished by confinement in a state jail for any term of
not more than two years or not less than 180 days.199 Under Utah law, if hazing results in
serious bodily injury, the hazer is guilty of a third-degree felony.200 A person who has been
convicted of a third-degree felony may be sentenced to imprisonment for a term not to
exceed five years.201 West Virginia law provides that if the act of hazing would otherwise be
deemed a felony, the hazer may be found guilty thereof and subject to penalties provided
therefor.202 In Wisconsin, a person is guilty of a Class G felony if hazing results in the death
of another.203 A Class G felony carries a fine not to exceed $25,000 or imprisonment not to
exceed 10 years, or both.204
In certain states in the U.S., victims of hazing were left with limited remedies, as there was no
hazing statute.205 This situation was exemplified in Ballou v. Sigma Nu General Fraternity,
wherein Barry Ballou’s family resorted to a civil action for wrongful death, since there was no
anti-hazing statute in South Carolina until 1994.206
The existence of animus interficendi or intent to kill not proven beyond reasonable doubt
We cannot subscribe to this conclusion.
The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the
existence of animus interficendi. For a full appreciation of the context in which the supposed
utterances were made, the Court deems it necessary to reproduce the relevant portions of
witness Marquez’s testimony:
Witness We were brought up into [Michael Musngi’s] room and we were briefed as to what
to expect during the next three days and we were told the members of the fraternity and
their batch and we were also told about the fraternity song, sir.
xxx xxx xxx
Witness We were escorted out of [Michael Musngi’s] house and we were made to ride a van
and we were brought to another place in Kalookan City which I later found to be the place of
Mariano Almeda, sir.
xxx xxx xxx
Witness Upon arrival, we were instructed to bow our head down and to link our arms and
then the driver of the van and other members of the Aquilans who were inside left us inside
the van, sir.

The presence of an ex ante situation – in this case, fraternity initiation rites – does not xxx xxx xxx
automatically amount to the absence of malicious intent or dolus malus. If it is proven
beyond reasonable doubt that the perpetrators were equipped with a guilty mind – whether Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion
or not there is a contextual background or factual premise – they are still criminally liable for Patay ka" and the people outside pound the van, rock the van, sir.
intentional felony.
Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks
The trial court, the CA, and the Solicitor General are all in agreement that – with the uttered upon your arrival?
exception of Villareal and Dizon – accused Tecson, Ama, Almeda, and Bantug did not have
the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer Witness Some were almost shouting, you could feel the sense of excitement in their voices,
disturb this finding. sir.

As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that xxx xxx xxx
the two accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict
physical injuries on him. It justified its finding of homicide against Dizon by holding that he
had apparently been motivated by ill will while beating up Villa. Dizon kept repeating that his Atty. Tadiar During all these times that the van was being rocked through and through, what
father’s parking space had been stolen by the victim’s father.207 As to Villareal, the court were the voices or utterances that you heard?
said that the accused suspected the family of Bienvenido Marquez, one of the neophytes, to
have had a hand in the death of Villareal’s brother.208 The CA then ruled as follows: Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.

The two had their own axes to grind against Villa and Marquez. It was very clear that they Atty. Tadiar And those utterances and threats, how long did they continue during the rocking
acted with evil and criminal intent. The evidence on this matter is unrebutted and so for the of the van which lasted for 5 minutes?
death of Villa, appellants Dizon and Villareal must and should face the consequence of their
acts, that is, to be held liable for the crime of homicide.209 (Emphasis supplied) xxx xxx xxx
Witness Even after they rocked the van, we still kept on hearing voices, sir.
xxx xxx xxx
Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was
there any utterances by anybody?
Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging
others who were pounding and beating us, it was just like a fiesta atmosphere, actually some
of them enjoyed looking us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you heard?
Witness One particular utterance always said was, they asked us whether "matigas pa yan,
kayang-kaya pa niyan."
Atty. Tadiar Do you know who in particular uttered those particular words that you quote?
Witness I cannot particularly point to because there were utterances simultaneously, I could
not really pin point who uttered those words, sir.
xxx xxx xxx
Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol
Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you
remember?
Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say
that and I quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn
sort of justifying him in inflicting more serious pain on me. So instead of just walking, he
would jump on my thighs and then after on was Lenny Villa. He was saying to the effect that
"this guy, his father stole the parking space of my father," sir. So, that’s why he inflicted more
pain on Villa and that went on, sir.
Atty. Tadiar And you were referring to which particular accused?
Witness Boyet Dizon, sir.
Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family
have his brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he
said that I knew nothing of that incident. However, he just in fact after the Bicol Express, he
kept on uttering those words/statements so that it would in turn justify him and to give me
harder blows, sir.
xxx xxx xxx
Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa’s father
stole the parking space allotted for his father, do you recall who were within hearing distance
when that utterance was made?
Witness Yes, sir. All of the neophytes heard that utterance, sir.
xxx xxx xxx
Witness There were different times made this accusation so there were different people who
heard from time to time, sir.
xxx xxx xxx
Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny
Villa’s father was made?
Witness When we were line up against the wall, Boyet Dizon came near to us and when
Lenny Villa’s turn, I heard him uttered those statements, sir.
Atty. Tadiar What happened after he made this accusation to Lenny Villa’s father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villa’s thighs and sometime he stand up and
he kicked his thighs and sometimes jumped at it, sir.
xxx xxx xxx
Atty. Tadiar We would go on to the second day but not right now. You mentioned also that
accusations made by Dizon "you or your family had his brother killed," can you inform this
Honorable Court what exactly were the accusations that were charged against you while
inflicting blows upon you in particular?
Witness While he was inflicting blows upon me, he told me in particular if I knew that his
family who had his brother killed, and he said that his brother was an NPA, sir so I knew that
it was just a story that he made up and I said that I knew nothing about it and he continued
inflicting blows on me, sir. And another incident was when a talk was being given, Dizon was like long sleeves, it would be covered actually so we have no thinking that our face would be
on another part of the pelota court and I was sort of looking and we saw that he was drinking slapped, sir.
beer, and he said and I quote: "Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw
yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir. Judge Purisima So, you mean to say that beforehand that you would have bruises on your
body but that will be covered?
Atty. Tadiar What else?
Witness Yes, sir.
Witness That’s all, sir.
JudgePurisima So, what kind of physical contact or implements that you expect that would
Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came create bruises to your body?
around as promised to you earlier?
Witness At that point I am already sure that there would be hitting by a paddling or paddle,
Witness No, sir.210 (Emphasis supplied) sir.

On cross-examination, witness Bienvenido Marquez testified thus: xxx xxx xxx

Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is
there was a briefing that was conducted immediately before your initiation as regards to psychological in nature?
what to expect during the initiation, did I hear you right?
Witness Combination, sir.211 (Emphasis supplied)
Witness Yes, sir.
xxx xxx xxx
Judge Purisima Who did the briefing?
Atty. Jimenez The initiation that was conducted did not consist only of physical initiation,
Witness Mr. Michael Musngi, sir and Nelson Victorino. meaning body contact, is that correct?

Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during Witness Yes, sir.
the initiation?
Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct?
Witness They told us at the time we would be brought to a particular place, we would be
mocked at, sir. Witness Yes, sir.

Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes?
Witness Yes, sir.
Judge Purisima You were also told beforehand that there would be physical contact?
Witness Yes, sir at the briefing.
Atty. Jimenez And this consisted of making you believe of things calculated to terrify you,
scare you, correct?
Witness Yes, sir.
Atty. Jimenez In other words, the initiating masters made belief situation intended to, I
repeat, terrify you, frighten you, scare you into perhaps quitting the initiation, is this correct?

xxx xxx xxx Witness Sometimes sir, yes.

Witness Yes, sir, because they informed that we could immediately go back to school. All the
bruises would be limited to our arms and legs, sir. So, if we wear the regular school uniforms
Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was
supposed to have said according to you that your family were responsible for the killing of his
brother who was an NPA, do you remember saying that?
Witness Yes, sir.
Atty. Jimenez You also said in connection with that statement said to you by Dizon that you
did not believe him because that is not true, correct?
Witness Yes, sir.
Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have
mentioned before, terrifying you, scaring you or frightening you into quitting the initiation,
this is correct?
Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things
was because he wanted to inflict injury.
Atty. Jimenez He did not tell that to you. That is your only perception, correct?
Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me.
Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of
initiation by all the initiating masters? You said that earlier, right?
Witness Yes, sir.
Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said
something similar as was told to you by Mr. Dizon?
Witness No, sir.
Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would
run on your thighs, right?
Witness Yes, sir.
Atty. Jimenez This was the regular procedure that was followed by the initiating masters not
only on you but also on the other neophytes?
Witness Yes, sir.
Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was
administered by one master, was also administered by one master on a neophyte, was also
administered by another master on the other neophyte, this is correct?
Witness Yes, sir.212 (Emphasis supplied)
According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and
Villareal were "baseless,"213 since the statements of the accused were "just part of the
psychological initiation calculated to instill fear on the part of the neophytes"; that "[t]here is
no element of truth in it as testified by Bienvenido Marquez"; and that the "harsh words
uttered by Petitioner and Villareal are part of ‘tradition’ concurred and accepted by all the
fraternity members during their initiation rites."214
We agree with the Solicitor General.
The foregoing testimony of witness Marquez reveals a glaring mistake of substantial
proportion on the part of the CA – it mistook the utterances of Dizon for those of Villareal.
Such inaccuracy cannot be tolerated, especially because it was the CA’s primary basis for
finding that Villarreal had the intent to kill Lenny Villa, thereby making Villareal guilty of the
intentional felony of homicide. To repeat, according to Bienvenido Marquez’s testimony, as
reproduced above, it was Dizon who uttered both "accusations" against Villa and Marquez;
Villareal had no participation whatsoever in the specific threats referred to by the CA. It was
"Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told witness Marquez, "[I]to,
yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who jumped on Villa’s
thighs while saying, "[T]his guy, his father stole the parking space of my father." With the
testimony clarified, we find that the CA had no basis for concluding the existence of intent to
kill based solely thereon.
As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual
milieu and contextual premise of the incident to fully appreciate and understand the
testimony of witness Marquez. At the outset, the neophytes were briefed that they would be
subjected to psychological pressure in order to scare them. They knew that they would be
mocked, ridiculed, and intimidated. They heard fraternity members shout, "Patay ka,
Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka," "Putang ina mo, Asuncion,"
"Putang ina nyo, patay kayo sa amin," or some other words to that effect.215 While beating
the neophytes, Dizon accused Marquez of the death of the former’s purported NPA brother,
and then blamed Lenny Villa’s father for stealing the parking space of Dizon’s father.
According to the Solicitor General, these statements, including those of the accused Dizon,
were all part of the psychological initiation employed by the Aquila Fraternity.216
Thus, to our understanding, accused Dizon’s way of inflicting psychological pressure was
through hurling make-believe accusations at the initiates. He concocted the fictitious stories,
so that he could "justify" giving the neophytes harder blows, all in the context of fraternity
initiation and role playing. Even one of the neophytes admitted that the accusations were
untrue and made-up.
The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during
the Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke
as follows:
Senator Lina. -- so as to capture the intent that we conveyed during the period of
interpellations on why we included the phrase "or psychological pain and suffering."
xxx xxx xxx
So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit
or neophyte is made to undergo certain acts which I already described yesterday, like playing
the Russian roulette extensively to test the readiness and the willingness of the neophyte or
recruit to continue his desire to be a member of the fraternity, sorority or similar
organization or playing and putting a noose on the neck of the neophyte or recruit, making
the recruit or neophyte stand on the ledge of the fourth floor of the building facing outside,
asking him to jump outside after making him turn around several times but the reality is that
he will be made to jump towards the inside portion of the building – these are the mental or
psychological tests that are resorted to by these organizations, sororities or fraternities. The
doctors who appeared during the public hearing testified that such acts can result in some
mental aberration, that they can even lead to psychosis, neurosis or insanity. This is what we
want to prevent.217 (Emphasis supplied)
Thus, without proof beyond reasonable doubt, Dizon’s behavior must not be automatically
viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken
within the context of the fraternity’s psychological initiation. This Court points out that it was
not even established whether the fathers of Dizon and Villa really had any familiarity with
each other as would lend credence to the veracity of Dizon’s threats. The testimony of
Lenny’s co-neophyte, Marquez, only confirmed this view. According to Marquez, he "knew it
was not true and that [Dizon] was just making it up…."218 Even the trial court did not give
weight to the utterances of Dizon as constituting intent to kill: "[T]he cumulative acts of all
the accused were not directed toward killing Villa, but merely to inflict physical harm as part
of the fraternity initiation rites x x x."219 The Solicitor General shares the same view.
Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article
249 of the Revised Penal Code on the basis of the existence of intent to kill. Animus
interficendi cannot and should not be inferred unless there is proof beyond reasonable doubt
of such intent.220 Instead, we adopt and reinstate the finding of the trial court in part,
insofar as it ruled that none of the fraternity members had the specific intent to kill Lenny
Villa.221
The existence of animus iniuriandi or malicious intent to injure not proven beyond
reasonable doubt
The Solicitor General argues, instead, that there was an intent to inflict physical injuries on
Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since
all of the accused fraternity members conspired to inflict physical injuries on Lenny Villa and
death ensued, all of them should be liable for the crime of homicide pursuant to Article 4(1)
of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the
Revised Penal Code,222 the employment of physical injuries must be coupled with dolus
malus. As an act that is mala in se, the existence of malicious intent is fundamental, since
injury arises from the mental state of the wrongdoer – iniuria ex affectu facientis consistat. If
there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus,
in case of physical injuries under the Revised Penal Code, there must be a specific animus
iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a
person, so as to incapacitate and deprive the victim of certain bodily functions. Without
proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting
physical injuries per se merely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his
intentions are.223
Thus, we have ruled in a number of instances224 that the mere infliction of physical injuries,
absent malicious intent, does not make a person automatically liable for an intentional
felony. In Bagajo v. People,225 the accused teacher, using a bamboo stick, whipped one of
her students behind her legs and thighs as a form of discipline. The student suffered lesions
and bruises from the corporal punishment. In reversing the trial court’s finding of criminal
liability for slight physical injuries, this Court stated thus: "Independently of any civil or
administrative responsibility … [w]e are persuaded that she did not do what she had done
with criminal intent … the means she actually used was moderate and that she was not
motivated by ill-will, hatred or any malevolent intent." Considering the applicable laws, we
then ruled that "as a matter of law, petitioner did not incur any criminal liability for her act of
whipping her pupil." In People v. Carmen,226 the accused members of the religious group
known as the Missionaries of Our Lady of Fatima – under the guise of a "ritual or treatment"
– plunged the head of the victim into a barrel of water, banged his head against a bench,
pounded his chest with fists, and stabbed him on the side with a kitchen knife, in order to
cure him of "nervous breakdown" by expelling through those means the bad spirits
possessing him. The collective acts of the group caused the death of the victim. Since
malicious intent was not proven, we reversed the trial court’s finding of liability for murder
under Article 4 of the Revised Penal Code and instead ruled that the accused should be held
criminally liable for reckless imprudence resulting in homicide under Article 365 thereof.
Indeed, the threshold question is whether the accused’s initial acts of inflicting physical pain
on the neophytes were attended by animus iniuriandi amounting to a felonious act
punishable under the Revised Penal Code, thereby making it subject to Article 4(1) thereof. In
People v. Regato, we ruled that malicious intent must be judged by the action, conduct, and
external acts of the accused.227 What persons do is the best index of their intention.228 We
have also ruled that the method employed, the kind of weapon used, and the parts of the
body on which the injury was inflicted may be determinative of the intent of the
perpetrator.229 The Court shall thus examine the whole contextual background surrounding
the death of Lenny Villa.
Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of
the rites, they were briefed on what to expect. They were told that there would be physical
beatings, that the whole event would last for three days, and that they could quit anytime.
On their first night, they were subjected to "traditional" initiation rites, including the "Indian
Run," "Bicol Express," "Rounds," and the "Auxies’ Privilege Round." The beatings were
predominantly directed at the neophytes’ arms and legs.
In the morning of their second day of initiation, they were made to present comic plays and
to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Late in the afternoon, they were once again subjected to "traditional"
initiation rituals. When the rituals were officially reopened on the insistence of Dizon and
Villareal, the neophytes were subjected to another "traditional" ritual – paddling by the
fraternity.
During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries
protected the neophytes by functioning as human barriers and shielding them from those
who were designated to inflict physical and psychological pain on the initiates.230 It was
their regular duty to stop foul or excessive physical blows; to help the neophytes to "pump"
their legs in order that their blood would circulate; to facilitate a rest interval after every
physical activity or "round"; to serve food and water; to tell jokes; to coach the initiates; and
to give them whatever they needed.
These rituals were performed with Lenny’s consent.231 A few days before the "rites," he
asked both his parents for permission to join the Aquila Fraternity.232 His father knew that
Lenny would go through an initiation process and would be gone for three days.233 The CA
found as follows:
It is worth pointing out that the neophytes willingly and voluntarily consented to undergo
physical initiation and hazing. As can be gleaned from the narration of facts, they voluntarily
agreed to join the initiation rites to become members of the Aquila Legis Fraternity. Prior to
the initiation, they were given briefings on what to expect. It is of common knowledge that
before admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they
were made aware that traditional methods such as mocking, psychological tests and physical
punishment would take place. They knew that the initiation would involve beatings and other
forms of hazing. They were also told of their right and opportunity to quit at any time they
wanted to. In fact, prosecution witness Navera testified that accused Tecson told him that
"after a week, you can already play basketball." Prosecution witness Marquez for his part,
admitted that he knew that the initiates would be hit "in the arms and legs," that a wooden
paddle would be used to hit them and that he expected bruises on his arms and legs….
Indeed, there can be no fraternity initiation without consenting neophytes.234 (Emphasis
supplied)
Even after going through Aquila’s grueling traditional rituals during the first day, Lenny
continued his participation and finished the second day of initiation.
Based on the foregoing contextual background, and absent further proof showing clear
malicious intent, we are constrained to rule that the specific animus iniuriandi was not
present in this case. Even if the specific acts of punching, kicking, paddling, and other modes
of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby
satisfying the elements of freedom and intelligence in the felony of physical injuries, the
fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the
contrary, all that was proven was that the acts were done pursuant to tradition. Although the
additional "rounds" on the second night were held upon the insistence of Villareal and Dizon,
the initiations were officially reopened with the consent of the head of the initiation rites;
and the accused fraternity members still participated in the rituals, including the paddling,
which were performed pursuant to tradition. Other than the paddle, no other "weapon" was
used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and
the arms. The designation of roles, including the role of auxiliaries, which were assigned for
the specific purpose of lending assistance to and taking care of the neophytes during the
initiation rites, further belied the presence of malicious intent. All those who wished to join
the fraternity went through the same process of "traditional" initiation; there is no proof that
Lenny Villa was specifically targeted or given a different treatment. We stress that Congress
itself recognized that hazing is uniquely different from common crimes.235 The totality of
the circumstances must therefore be taken into consideration.
The underlying context and motive in which the infliction of physical injuries was rooted may
also be determined by Lenny’s continued participation in the initiation and consent to the
method used even after the first day. The following discussion of the framers of the 1995
Anti-Hazing Law is enlightening:
Senator Guingona. Most of these acts, if not all, are already punished under the Revised
Penal Code.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If hazing is done at present and it results in death, the charge would be
murder or homicide.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If it does not result in death, it may be frustrated homicide or serious
physical injuries.
Senator Lina. That is correct, Mr. President.
Senator Guingona. Or, if the person who commits sexual abuse does so it can be penalized
under rape or acts of lasciviousness.
Senator Lina. That is correct, Mr. President.
Senator Guingona. So, what is the rationale for making a new offense under this definition of
the crime of hazing?
Senator Lina. To discourage persons or group of persons either composing a sorority,
fraternity or any association from making this requirement of initiation that has already
resulted in these specific acts or results, Mr. President.
That is the main rationale. We want to send a strong signal across the land that no group or
association can require the act of physical initiation before a person can become a member
without being held criminally liable.
xxx xxx xxx
Senator Guingona. Yes, but what would be the rationale for that imposition? Because the
distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking
the punishment of an initiation into a club or organization, he is seeking the punishment of
certain acts that resulted in death, et cetera as a result of hazing which are already covered
crimes.
The penalty is increased in one, because we would like to discourage hazing, abusive hazing,
but it may be a legitimate defense for invoking two or more charges or offenses, because
these very same acts are already punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
Senator Lina. x x x
Another point, Mr. President, is this, and this is a very telling difference: When a person or
group of persons resort to hazing as a requirement for gaining entry into an organization, the
intent to commit a wrong is not visible or is not present, Mr. President. Whereas, in these
specific crimes, Mr. President, let us say there is death or there is homicide, mutilation, if one
files a case, then the intention to commit a wrong has to be proven. But if the crime of hazing
is the basis, what is important is the result from the act of hazing.
To me, that is the basic difference and that is what will prevent or deter the sororities or
fraternities; that they should really shun this activity called "hazing." Because, initially, these
fraternities or sororities do not even consider having a neophyte killed or maimed or that
acts of lasciviousness are even committed initially, Mr. President.
So, what we want to discourage is the so-called initial innocent act. That is why there is need
to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay
magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay
pa iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon, walang
intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang
natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin
natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung
mamatay diyan, mataas ang penalty sa inyo."
xxx xxx xxx
Senator Guingona. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I
am again disturbed by his statement that the prosecution does not have to prove the intent
that resulted in the death, that resulted in the serious physical injuries, that resulted in the
acts of lasciviousness or deranged mind. We do not have to prove the willful intent of the
accused in proving or establishing the crime of hazing. This seems, to me, a novel situation
where we create the special crime without having to go into the intent, which is one of the
basic elements of any crime.
If there is no intent, there is no crime. If the intent were merely to initiate, then there is no
offense. And even the distinguished Sponsor admits that the organization, the intent to
initiate, the intent to have a new society or a new club is, per se, not punishable at all. What
are punishable are the acts that lead to the result. But if these results are not going to be
proven by intent, but just because there was hazing, I am afraid that it will disturb the basic
concepts of the Revised Penal Code, Mr. President.
Senator Lina. Mr. President, the act of hazing, precisely, is being criminalized because in the
context of what is happening in the sororities and fraternities, when they conduct hazing, no
one will admit that their intention is to maim or to kill. So, we are already criminalizing the
fact of inflicting physical pain. Mr. President, it is a criminal act and we want it stopped,
deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the masters intended to kill
or the masters intended to maim. What is important is the result of the act of hazing.
Otherwise, the masters or those who inflict the physical pain can easily escape responsibility
and say, "We did not have the intention to kill. This is part of our initiation rites. This is
normal. We do not have any intention to kill or maim."
This is the lusot, Mr. President. They might as well have been charged therefore with the
ordinary crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty
proving the elements if they are separate offenses.
xxx xxx xxx
Senator Guingona. Mr. President, assuming there was a group that initiated and a person
died. The charge is murder. My question is: Under this bill if it becomes a law, would the
prosecution have to prove conspiracy or not anymore?
Senator Lina. Mr. President, if the person is present during hazing x x x
Senator Guingona. The persons are present. First, would the prosecution have to prove
conspiracy? Second, would the prosecution have to prove intent to kill or not?
Senator Lina. No more. As to the second question, Mr. President, if that occurs, there is no
need to prove intent to kill.
Senator Guingona. But the charge is murder.
Senator Lina. That is why I said that it should not be murder. It should be hazing, Mr.
President. 236 (Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on the issue of whether to
include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified
thus:
Senator Biazon. Mr. President, this Representation has no objection to the inclusion of
sodomy as one of the conditions resulting from hazing as necessary to be punished.
However, the act of sodomy can be committed by two persons with or without consent.
To make it clearer, what is being punished here is the commission of sodomy forced into
another individual by another individual. I move, Mr. President, that sodomy be modified by
the phrase "without consent" for purposes of this section.
Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is
only going to aggravate the crime of hazing if it is done without consent will change a lot of
concepts here. Because the results from hazing aggravate the offense with or without
consent. In fact, when a person joins a fraternity, sorority, or any association for that matter,
it can be with or without the consent of the intended victim. The fact that a person joins a
sorority or fraternity with his consent does not negate the crime of hazing.
This is a proposed law intended to protect the citizens from the malpractices that attend
initiation which may have been announced with or without physical infliction of pain or
injury, Mr. President. Regardless of whether there is announcement that there will be
physical hazing or whether there is none, and therefore, the neophyte is duped into joining a
fraternity is of no moment. What is important is that there is an infliction of physical pain.
The bottom line of this law is that a citizen even has to be protected from himself if he joins a
fraternity, so that at a certain point in time, the State, the individual, or the parents of the
victim can run after the perpetrators of the crime, regardless of whether or not there was
consent on the part of the victim.
xxx xxx xxx
Senator Lina. Mr. President, I understand the position taken by the distinguished Gentleman
from Cavite and Metro Manila. It is correct that society sometimes adopts new mores,
traditions, and practices.
In this bill, we are not going to encroach into the private proclivities of some individuals
when they do their acts in private as we do not take a peek into the private rooms of couples.
They can do their thing if they want to make love in ways that are not considered acceptable
by the mainstream of society. That is not something that the State should prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such that the act may even
be entered into with consent. It is not only sodomy. The infliction of pain may be done with
the consent of the neophyte. If the law is passed, that does not make the act of hazing not
punishable because the neophyte accepted the infliction of pain upon himself.
If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it
upon himself. He consented to it." So, if we allow that reasoning that sodomy was done with
the consent of the victim, then we would not have passed any law at all. There will be no
significance if we pass this bill, because it will always be a defense that the victim allowed the
infliction of pain or suffering. He accepted it as part of the initiation rites.
But precisely, Mr. President that is one thing that we would want to prohibit. That the
defense of consent will not apply because the very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. The result of the act of hazing, like death
or physical injuries merely aggravates the act with higher penalties. But the defense of
consent is not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the offense if it is
committed without consent of the victim, then the whole foundation of this proposed law
will collapse.
Senator Biazon. Thank you, Mr. President.
Senator Lina. Thank you very much.
The President. Is there any objection to the committee amendment? (Silence.) The Chair
hears none; the same is approved.237
(Emphasis supplied)
Realizing the implication of removing the state’s burden to prove intent, Senator Lina, the
principal author of the Senate Bill, said:
I am very happy that the distinguished Minority Leader brought out the idea of intent or
whether there it is mala in se or mala prohibita. There can be a radical amendment if that is
the point that he wants to go to.
If we agree on the concept, then, maybe, we can just make this a special law on hazing. We
will not include this anymore under the Revised Penal Code. That is a possibility. I will not
foreclose that suggestion, Mr. President.238 (Emphasis supplied)
Thus, having in mind the potential conflict between the proposed law and the core principle
of mala in se adhered to under the Revised Penal Code, Congress did not simply enact an
amendment thereto. Instead, it created a special law on hazing, founded upon the principle
of mala prohibita. This dilemma faced by Congress is further proof of how the nature of
hazing – unique as against typical crimes – cast a cloud of doubt on whether society
considered the act as an inherently wrong conduct or mala in se at the time. It is safe to
presume that Lenny’s parents would not have consented239 to his participation in Aquila
Fraternity’s initiation rites if the practice of hazing were considered by them as mala in se.
Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now retired
Chief Justice) Hilario Davide that "in our nation’s very recent history, the people have spoken,
through Congress, to deem conduct constitutive of … hazing, [an] act[] previously considered
harmless by custom, as criminal."240 Although it may be regarded as a simple obiter dictum,
the statement nonetheless shows recognition that hazing – or the conduct of initiation rites
through physical and/or psychological suffering – has not been traditionally criminalized.
Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law; hazing was
not clearly considered an intentional felony. And when there is doubt on the interpretation
of criminal laws, all must be resolved in favor of the accused. In dubio pro reo.
For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the
trial court’s finding of malicious intent to inflict physical injuries on Lenny Villa, there being
no proof beyond reasonable doubt of the existence of malicious intent to inflict physical
injuries or animus iniuriandi as required in mala in se cases, considering the contextual
background of his death, the unique nature of hazing, and absent a law prohibiting hazing.
The accused fraternity members guilty of reckless imprudence resulting in homicide
The absence of malicious intent does not automatically mean, however, that the accused
fraternity members are ultimately devoid of criminal liability. The Revised Penal Code also
punishes felonies that are committed by means of fault (culpa). According to Article 3
thereof, there is fault when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done without malice, from
which an immediate personal harm, injury or material damage results by reason of an
inexcusable lack of precaution or advertence on the part of the person committing it.241 In
this case, the danger is visible and consciously appreciated by the actor.242 In contrast,
simple imprudence or negligence comprises an act done without grave fault, from which an
injury or material damage ensues by reason of a mere lack of foresight or skill.243 Here, the
threatened harm is not immediate, and the danger is not openly visible. 244
The test245 for determining whether or not a person is negligent in doing an act is as follows:
Would a prudent man in the position of the person to whom negligence is attributed foresee
harm to the person injured as a reasonable consequence of the course about to be pursued?
If so, the law imposes on the doer the duty to take precaution against the mischievous
results of the act. Failure to do so constitutes negligence.246
As we held in Gaid v. People, for a person to avoid being charged with recklessness, the
degree of precaution and diligence required varies with the degree of the danger
involved.247 If, on account of a certain line of conduct, the danger of causing harm to
another person is great, the individual who chooses to follow that particular course of
conduct is bound to be very careful, in order to prevent or avoid damage or injury.248 In
contrast, if the danger is minor, not much care is required.249 It is thus possible that there
are countless degrees of precaution or diligence that may be required of an individual, "from
a transitory glance of care to the most vigilant effort."250 The duty of the person to employ
more or less degree of care will depend upon the circumstances of each particular case.251
There was patent recklessness in the hazing of Lenny Villa.
According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple
traumatic injuries.252 The officer explained that cardiac failure refers to the failure of the
heart to work as a pump and as part of the circulatory system due to the lack of blood.253 In
the present case, the victim’s heart could no longer work as a pumping organ, because it was
deprived of its requisite blood and oxygen.254 The deprivation was due to the "channeling"
of the blood supply from the entire circulatory system – including the heart, arteries, veins,
venules, and capillaries – to the thigh, leg, and arm areas of Lenny, thus causing the
formation of multiple hematomas or blood clots.255 The multiple hematomas were wide,
thick, and deep,256 indicating that these could have resulted mainly from injuries sustained
by the victim from fist blows, knee blows, paddles, or the like.257 Repeated blows to those
areas caused the blood to gradually ooze out of the capillaries until the circulating blood
became so markedly diminished as to produce death. 258 The officer also found that the
brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well
as the thoracic organ in the lungs, were pale due to the lack of blood, which was redirected
to the thighs and forearms.259 It was concluded that there was nothing in the heart that
would indicate that the victim suffered from a previous cardiac arrest or disease.260
The multiple hematomas or bruises found in Lenny Villa’s arms and thighs, resulting from
repeated blows to those areas, caused the loss of blood from his vital organs and led to his
eventual death. These hematomas must be taken in the light of the hazing activities
performed on him by the Aquila Fraternity. According to the testimonies of the co-neophytes
of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit with different
objects on their arms, legs, and thighs.261 They were also "paddled" at the back of their
thighs or legs;262 and slapped on their faces.263 They were made to play rough
basketball.264 Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya sa
spine."265 The NBI medico-legal officer explained that the death of the victim was the
cumulative effect of the multiple injuries suffered by the latter.266 The relevant portion of
the testimony is as follows:
Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of
defense counsels that the injuries that you have enumerated on the body of the deceased
Lenny Villa previously marked as Exhibit "G-1" to "G-14" individually by themselves would
not cause the death of the victim. The question I am going to propound to you is what is the
cumulative effect of all of these injuries marked from Exhibit "G-1" to "G-14"?
Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair
for us to isolate such injuries here because we are talking of the whole body. At the same
manner that as a car would not run minus one (1) wheel. No, the more humane in human
approach is to interpret all those injuries in whole and not in part.267
There is also evidence to show that some of the accused fraternity members were drinking
during the initiation rites.268
Consequently, the collective acts of the fraternity members were tantamount to
recklessness, which made the resulting death of Lenny a culpable felony. It must be
remembered that organizations owe to their initiates a duty of care not to cause them injury
in the process.269 With the foregoing facts, we rule that the accused are guilty of reckless
imprudence resulting in homicide. Since the NBI medico-legal officer found that the victim’s
death was the cumulative effect of the injuries suffered, criminal responsibility redounds to
all those who directly participated in and contributed to the infliction of physical injuries.
It appears from the aforementioned facts that the incident may have been prevented, or at
least mitigated, had the alumni of Aquila Fraternity – accused Dizon and Villareal – restrained
themselves from insisting on reopening the initiation rites. Although this point did not matter
in the end, as records would show that the other fraternity members participated in the
reopened initiation rites – having in mind the concept of "seniority" in fraternities – the
implication of the presence of alumni should be seen as a point of review in future
legislation. We further note that some of the fraternity members were intoxicated during
Lenny’s initiation rites. In this light, the Court submits to Congress, for legislative
consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and
the presence of non-resident or alumni fraternity members during hazing as aggravating
circumstances that would increase the applicable penalties.
It is truly astonishing how men would wittingly – or unwittingly –impose the misery of hazing
and employ appalling rituals in the name of brotherhood. There must be a better way to
establish "kinship." A neophyte admitted that he joined the fraternity to have more friends
and to avail himself of the benefits it offered, such as tips during bar examinations.270
Another initiate did not give up, because he feared being looked down upon as a quitter, and
because he felt he did not have a choice.271 Thus, for Lenny Villa and the other neophytes,
joining the Aquila Fraternity entailed a leap in the dark. By giving consent under the
circumstances, they left their fates in the hands of the fraternity members. Unfortunately,
the hands to which lives were entrusted were barbaric as they were reckless.
Our finding of criminal liability for the felony of reckless imprudence resulting in homicide
shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law
been in effect then, these five accused fraternity members would have all been convicted of
the crime of hazing punishable by reclusion perpetua (life imprisonment).272 Since there was
no law prohibiting the act of hazing when Lenny died, we are constrained to rule according to
existing laws at the time of his death. The CA found that the prosecution failed to prove,
beyond reasonable doubt, Victorino et al.’s individual participation in the infliction of
physical injuries upon Lenny Villa.273 As to accused Villareal, his criminal liability was totally
extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code.
Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of
the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal liability
from slight physical injuries to reckless imprudence resulting in homicide shall apply only
with respect to accused Almeda, Ama, Bantug, and Tecson.
The accused liable to pay damages
The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of ₱ 50,000 as
civil indemnity ex delicto and ₱ 1,000,000 as moral damages, to be jointly and severally paid
by accused Dizon and Villareal. It also awarded the amount of ₱ 30,000 as indemnity to be
jointly and severally paid by accused Almeda, Ama, Bantug, and Tecson.1âwphi1
Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim.274
In accordance with prevailing jurisprudence,275 we sustain the CA’s award of indemnity in
the amount of ₱ 50,000.
The heirs of the victim are entitled to actual or compensatory damages, including expenses
incurred in connection with the death of the victim, so long as the claim is supported by
tangible documents.276 Though we are prepared to award actual damages, the Court is
prevented from granting them, since the records are bereft of any evidence to show that
actual expenses were incurred or proven during trial. Furthermore, in the appeal, the
Solicitor General does not interpose any claim for actual damages.277
The heirs of the deceased may recover moral damages for the grief suffered on account of
the victim’s death.278 This penalty is pursuant to Article 2206(3) of the Civil Code, which
provides that the "spouse, legitimate and illegitimate descendants and the ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the
deceased."279 Thus, we hereby we affirm the CA’s award of moral damages in the amount of
₱ 1,000,000.
WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon
guilty of homicide is hereby MODIFIED and set aside IN PART. The appealed Judgment in G.R.
No. 154954 – finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson guilty of the crime of slight physical injuries – is also MODIFIED and set aside
in part. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug,
Jr., and Vincent Tecson are found guilty beyond reasonable doubt of reckless imprudence
resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the
Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term of
four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition, accused are ORDERED jointly and
severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of ₱ 50,000,
and moral damages in the amount of ₱ 1,000,000, plus legal interest on all damages awarded
at the rate of 12% from the date of the finality of this Decision until satisfaction.280 Costs de
oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby affirmed.
The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed
against Escalona, Ramos, Saruca, and Adriano, are likewise affirmed. Finally, pursuant to
Article 89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed,
and the criminal case against Artemio Villareal deemed closed and TERMINATED.
Let copies of this Decision be furnished to the Senate President and the Speaker of the House
of Representatives for possible consideration of the amendment of the Anti-Hazing Law to
include the fact of intoxication and the presence of non-resident or alumni fraternity
members during hazing as aggravating circumstances that would increase the applicable
penalties.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9726 December 8, 1914
THE UNITED STATES, plaintiff-appellee,
vs.
CARSON TAYLOR, defendant-appellant.
C. W. O'Brien for appellant.
Office of the Solicitor General Corpus for appellee.
JOHNSON, J.:
This was an action for criminal libel.
The complaint alleged:
That on the 25th day of September, 1913, the said Carson Taylor, being then and
there the acting editor and proprietor, manager, printer, and publisher in the city
of Manila, Philippine Islands, of a certain daily bilingual newspaper, edited in the
English and Spanish languages, and known as the 'Manila Daily Bulletin,' a paper of
large circulation throughout the Philippine Islands, as well as in the United States
and other countries in all of which both languages are spoken and written, and
having as such the supervision and control of said newspaper, did then and there
willfully, unlawfully, feloniously, maliciously, and with intent to impeach the
honesty, virtue, and reputation of one Ramon Sotelo as a member of the bar of the
Philippine Islands and as private individual, and to expose him to public hatred,
contempt and ridicule, compose, print, edit, publish, and circulate and procure to
be composed, printed, edited, published, and circulated in said newspaper's issue
of the above mentioned date, September 25, 1913, a certain false and malicious
defamation and libel in the English language of and concerning the said Ramon
Sotelo, which reads as follows:
OWNERS FIRED BUILDING TO COLLECT INSURANCE. — CRIMINAL CHARGES
FOLLOWS CIVIL SUIT.
'Conspiracy divulged in three sworn statements made by members of the
party after a family disagreement. Sensational statement sworn to.
Mystery of Calle O'Donnell fire solved and papers served.
'Conspiracy to defraud the insurance company.'
'The building was fired to collect the amount of insurance.'
'The movable furniture of value was removed before the fire.'
'The full amount of the insurance was collected, and the conspiracy was a
success.'
'The above is the gist of the sworn statements of Vicente Sotelo and
Eugenio Martin in connection with the fire that destroyed house No.
2157 Calle O'Donnell on April 4.'
'The case in question is a sensational one to say the least, and the court is
being petitioned to set aside the ruling and cite the parties to show cause
why they should not be cited to answer charges of conspiracy to
defraud.'
'On April 4, 1913, the house located at 2157 Calle O'donnell was
destroyed by fire.1awphil.net The house was insured for P5,000, the
contents for an additional P5,000, with the West of Scotland Insurance
Association, of which Lutz & Co. are the local agents, with an additional
P1,500 with Smith, Bell & Co.'
'The full amount of the insurance on the property was paid by the paid by
the agents of the insurance companies and the matter apparently
dropped from the records.'
'Then there was internal trouble and information began to leak out which
resulted in sensational statements to the effect that the destruction of
the property had been an act of incendiarism in order to collect the
insurance. The there was an investigation started and it resulted in sworn
statements of the three persons above mentioned.'
'Notarial returns were made yesterday by the sheriff, based on the sworn
statements and the parties are cited to appear in court and show cause.'
'The investigation also showed that the furniture, which was supposed to
be in line the house at the time of the conflagration and which was paid
for by the insurance agents, sworn statements having been made that it
was destroyed in the fire, was in certain house in Montalban, where it
was identified upon the sworn statements of the above mentioned.
Implicated in the charges of conspiracy and fraud is the name of the
attorney for the plaintiff who made affidavit as to the burning of the
house and against whom criminal proceedings will be brought as well as
against the original owners.'
 'Attorney Burke, who represents Lutz & Co. in the proceedings, was seen
last night and asked for a statement as to the case. Mr. Burke refused to
talk on the case and stated that when it came to trial it would be time
enough to obtain the facts.'
'The present action came before the court on motion of Attorney Burke
to set aside the judgment, which, in the original case, given the owners of
the property judgment for the amount of the insurance.'
'Attorney Burke filed the sworn statements with the court and the
notarial returns to the same were made yesterday afternoon, the sworn
statements as to the burning of the house being in the hands of the
sheriff.'
'It was stated yesterday that a criminal action would follow the civil
proceedings instituted to recover the funds in the case entitled on the
court records, Maria Mortera de Eceiza and Manuel Eceiza versus the
West o Sctoland Association, Limited, No. 10191 on the court
records.'1awphil.net
'It might be stated also that Eugenio Martin was one of the plaintiffs in
the recent suit brought against Ex-Governor W. Cameron Forbes for
lumber supplied for his Boston home.'
That in this article is contained the following paragraph. To wit:
". . . Implicated in the charges of conspiracy and fraud is the name of the attorney
for the plaintiff who made affidavit as to the burning of the house and against
whom criminal proceedings will be brought as well as against the original owners,"
by which the said accused meant to refer and did refer to the said Ramon Sotelo,
who then and there was the attorney for the plaintiff in the case aforesaid, No.
10191 of the Court of First Instance of the city of Manila, and so was understood by
the public who read the same; that the statements and allegations made in said
paragraph are wholly false and untrue, thus impeaching the honesty, virtue, and
reputation of the said offended party as a member of the bar of the Philippine
Islands and as private individual, and exposing him to public hatred, contempt and
ridicule. Contrary to law.
Upon said complaint the defendant was arrested, arraigned, plead not guilty, was tried,
found guilty of the crime charged, and sentenced by the Honorable George N. Hurd, judge, to
pay a fine of P200. From the sentence the defendant appealed to this court and made the
following assignment of error:
First. The court erred in finding that the defendant was responsible for and guilty of
the alleged libel.
Second. The court erred in finding that the defendant was the proprietor and
publisher of the "Manila Daily Bulletin."
Third. The court erred in finding that the alleged libelous articles was libelous per
se.
Fourth. The court erred in holding that the article was libelous, while finding that
there was no malice.
Fifth. The court erred in finding that the alleged libelous article referred to attorney
Ramon Sotelo.
Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in
case No. 10191, when the alleged libel was published.
After a careful examination of the record and the arguments presented by the appellant, we
deem it necessary to discuss only the first and second assignments of error.
In the Philippine Islands there exist no crimes such as are known in the United States and
England as common law crimes. No act constitutes a crime here unless it is made so by law.
Libel is made a crime here by Act No. 277 of the United States Philippine Commission. Said
Act (No. 277) not only defines the crime of libel and prescribes the particular conditions
necessary to constitute it, but it also names the persons who may be guilty of such crime. In
the present case the complaint alleges that the defendant was, at the time of the publication
of said alleged article "the acting editor, proprietor, manager, printer, publisher, etc. etc. of a
certain bilingual newspaper, etc., known as the 'Manila Daily Bulletin,' a paper of large
circulation throughout the Philippine Islands, as well as in the United States and other
countries."
It will be noted that the complaint charges the defendant as "the acting editor, proprietor,
manager, printer, and publisher." From an examination of said Act No. 277, we find that
section 6 provides that: "Every author, editor, or proprietor of any book, newspaper, or serial
publication is chargeable with the publication of any words contained in any part of said
book or number of each newspaper or serial as fully as if he were the author of the same."
By an examination of said article, with reference to the persons who may be liable for the
publication of a libel in a newspaper, we find that it only provides for a punishment of "the
author, editor, or proprietor." It would follow, therefore, that unless the proof shows that
the defendant in the present case is the "author, editor, or proprietor" of the newspaper in
which the libel was published, he can not be held liable.
In the present case the Solicitor-General in his brief said that — "No person is represented to
be either the 'author, editor, or proprietor.'" That statement of the Solicitor-General is fully
sustained by the record. There is not a word of proof in the record showing that the
defendant was either the "author, the editor, or the proprietor." The proof shows that the
defendant was the "manager." He must, therefore, be acquitted of the crime charged against
him, unless it is shown by the proof that he, as "manager" of the newspaper, was in some fixed rule which indicates particularly and definitely his duties, powers and obligations. An
way directly responsible for the writing, editing, or publishing of the matter contained in said examination into the character of the business and the contract of his employment must be
alleged libelous article. The prosecution presented the newspaper, the "Manila Daily made for the purpose of ascertaining definitely what his duties and obligations are. His exact
Bulletin," for the purpose of showing the relation which the defendant had to it. That was the relation is always a matter of proof. It is incumbent upon the prosecution is a case like the
only proof presented by the prosecution to show the relation which the defendant had to the present, to show that whatever title, name or designation the defendant may bear, he was,
publication of the libel in question. From an examination of the editorial page of said exhibit, in fact, the "author, the editor, or the proprietor" of the newspaper. If he was in fact the
we find that it shows that the "Manila Daily Bulletin" is owned by the "Bulletin Publishing "author, editor, or proprietor," he can not escape responsibility by calling the "manager" or
Company," and that the defendant was its manager. There is not a word of proof in the "printer." It is the relation which he bears to the publication and not the name or title he has
record which shows what relation the manager had to the publication of said newspaper. We assumed, which is important in an investigation. He can not wear the toga of author of editor
might, by series of presumptions and assumptions, conclude that the manager of a and hide his responsibility by giving himself some other name. While the terms "author,
newspaper has some direct responsibility with its publication. We believe, however, that editor, and proprietor" of a newspaper are terms well defined, the particular words "author,
such presumptions and assumptions, in the absence of a single letter of proof relating editor, or proprietor" are not material or important, further than that they are words which
thereto, would be unwarranted and unjustified. The prosecuting attorney had an opportunity are intended to show the relation of the responsible party to the publication. That relation
to present proof or because no such proof was obtainable, he presented none. It certainly is may as well exist under some other name or denomination.
not difficult matter to ascertain who is the real person responsible for the publication of a
newspaper which is published daily and has a wide circulation in a particular community. No For the foregoing reasons, therefore, there being no proof whatever in the record showing
question was asked the defendant concerning his particular relation to the publication of the that the defendant was the "author, the editor, or the proprietor" of the newspaper in
newspaper in question. We do not desire to be understood in our conclusions here as question, the sentence of the lower court must be reversed, the complaint dismissed and the
holding that the "manager" or the "printer" may not, under certain conditions and proper defendant discharged from the custody of the law, with costs de officio. So ordered
proof, he held to be the "author, editor, or proprietor" of a newspaper. He may nominate
himself as "manager" or "printer" simply, and be at the same time the "author, editor, or
proprietor" of the newspaper. He can not avoid responsibility by using some other term or
word, indicating his relation to the newspaper or the publication, when, as a matter of fact,
he is the "author, the editor, or the proprietor" of the same. His real relation to the said
publication is a matter of proof. The Solicitor-General, in his with the hope of evading legal
responsibility, as the Libel Law places the responsibility for publishing a libel, on "every
author, editor, or proprietor of any book, etc." Had the prosecuting attorney in the trial of
the cause believed that the defendant, even though he called himself the "manager" was, in
fact, the "author, editor, or proprietor" of said publication, he should have presented some
proof supporting that contention. Neither do we desire to be understood as holding that
simply because a person connected with the publication of a newspaper who calls himself
the "manager" or "printer" may not, in fact and at the same time, be the "author, editor, or
proprietor." The "author, editor, or proprietor" can not avoid responsibility for the writing
and publication of a libelous article, by simply calling himself the "manager" or the "printer"
of a newspaper. That, however, is a question of proof. The burden is upon the prosecution to
show that the defendant is, by whatever name he may call himself, in truth and in fact, the
"author, editor, or proprietor" of a newspaper. The courts cannot assume, in the absence of
proof, that one who called himself "manager" was in fact the "author, editor, or proprietor."
We might assume, perhaps, that the "manager" of a newspaper plays an important part in
the publication of the same by virtue of the general signification of the word "manager."
Men can not, however, be sentenced upon the basis of a mere assumption. There must be
some proof. The word "manage" has been defined by Webster to mean "to have under
control and direction; to conduct; to guide; to administer; to treat; to handle." Webster
defines "manager" to be "one who manages; a conductor or director; as, the manager of a
theater." A manager, as that word is generally understood, we do not believe includes the
idea of ownership. Generally speaking it means one who is representing another as an agent.
That being true, his power and duties and obligations are generally defined by contract. He
may have expressed as well as implied powers, but whatever his powers and duties are they
must be defendant upon the nature of the business and the terms of his contract. There is no
 Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set
aside the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the
Court of Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of
the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty
beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-
paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private complainant was then engaged in the business of
lending money to casino players and, upon hearing that the former had some pieces of
jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and offered
to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an 18k diamond ring for men;
a woman's bracelet; one (1) men's necklace and another men's bracelet, with an aggregate
value of ₱98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner
shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a
period of 60 days. The period expired without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was able to meet petitioner, the
latter promised the former that he will pay the value of the said items entrusted to him, but
to no avail.
Thus, an Information was filed against petitioner for the crime of estafa, which reads as
follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, after having
received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one
(1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k,
worth ₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00),
Philippine currency, under expressed obligation on the part of said accused to remit the
proceeds of the sale of the said items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his aforestated obligation, did then and there
wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal
use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite
repeated demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage
and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not
guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo
Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which
can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio Balajadia, who is
engaged in the financing business of extending loans to Base employees. For every collection
made, they earn a commission. Petitioner denied having transacted any business with private
complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was
made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991
and used as evidence against him for the supposed agreement to sell the subject pieces of
jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in
the Information. The dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary
the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty
consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS
AND TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to
FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period
AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of ₱98,000.00
as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner and
affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of
4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years. The rest of the
decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court the
present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND
APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS,
WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH
THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED
PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES
OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED,
IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION
AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY
THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND
LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the
following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.
The information was not defective inasmuch as it sufficiently established the designation of
the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry even more
weight when said court affirms the findings of the trial court, absent any showing that the
findings are totally devoid of support in the records, or that they are so glaringly erroneous
as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in
affirming the factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in
evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although
the same was merely a photocopy, thus, violating the best evidence rule. However, the
records show that petitioner never objected to the admissibility of the said evidence at the
time it was identified, marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his Comment to the
prosecution's formal offer of evidence and even admitted having signed the said receipt. The
established doctrine is that when a party failed to interpose a timely objection to evidence at
the time they were offered in evidence, such objection shall be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the formally defective
Information filed against him. He contends that the Information does not contain the period
when the pieces of jewelry were supposed to be returned and that the date when the crime
occurred was different from the one testified to by private complainant. This argument is
untenable. The CA did not err in finding that the Information was substantially complete and
in reiterating that objections as to the matters of form and substance in the Information
cannot be made for the first time on appeal. It is true that the gravamen of the crime of
estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or
conversion of money or property received to the prejudice of the owner6 and that the time
of occurrence is not a material ingredient of the crime, hence, the exclusion of the period
and the wrong date of the occurrence of the crime, as reflected in the Information, do not
make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory designation of Petitioner argues that the last element, which is, that there is a demand by the offended
the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the party on the offender, was not proved. This Court disagrees. In his testimony, private
Rules of Court provides that a complaint or information is sufficient if it states the name of complainant narrated how he was able to locate petitioner after almost two (2) months from
the accused; the time he gave the pieces of jewelry and asked petitioner about the same items with the
latter promising to pay them. Thus:
the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of the PROS. MARTINEZ
commission of the offense, and the place wherein the offense was committed. In the case at
bar, a reading of the subject Information shows compliance with the foregoing rule. That the q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
time of the commission of the offense was stated as " on or about the fifth (5th) day of July, finished on 5 July 1991, the question is what happens (sic) when the deadline came?
1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same
Rule requires a statement of the precise time only when the same is a material ingredient of
a I went looking for him, sir.
the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the
Revised Penal Code (RPC) is the appropriation or conversion of money or property received
to the prejudice of the offender. Thus, aside from the fact that the date of the commission q For whom?
thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso facto defective. a Lito Corpuz, sir.
Moreover, the said date is also near the due date within which accused-appellant should
have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by q Were you able to look (sic) for him?
Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant,
therefore, cannot now be allowed to claim that he was not properly apprised of the charges
proferred against him.7 a I looked for him for a week, sir.

It must be remembered that petitioner was convicted of the crime of Estafa under Article q Did you know his residence?
315, paragraph 1 (b) of the RPC, which reads:
a Yes, sir.
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow. q Did you go there?

1. With unfaithfulness or abuse of confidence, namely: a Yes, sir.

xxxx q Did you find him?

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any a No, sir.
other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to q Were you able to talk to him since 5 July 1991?
return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other property; x x x
a I talked to him, sir.

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or
q How many times?
other personal property is received by the offender in trust, or on commission, or for
administration, or under any other obligation involving the duty to make delivery of, or to
return the same; (b) that there be misappropriation or conversion of such money or property a Two times, sir.
by the offender or denial on his part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and (d) that there is a demand made by q What did you talk (sic) to him?
the offended party on the offender.8
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him where the items
are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him partially or full?
a No, sir.9
No specific type of proof is required to show that there was demand.10 Demand need not
even be formal; it may be verbal.11 The specific word "demand" need not even be used to
show that it has indeed been made upon the person charged, since even a mere query as to
the whereabouts of the money [in this case, property], would be tantamount to a demand.12
As expounded in Asejo v. People:13
With regard to the necessity of demand, we agree with the CA that demand under this kind
of estafa need not be formal or written. The appellate court observed that the law is silent
with regard to the form of demand in estafa under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written demand be
necessary, the law would have stated so. Otherwise, the word "demand" should be
interpreted in its general meaning as to include both written and oral demand. Thus, the
failure of the prosecution to present a written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money
entrusted to the accused, we held that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence of the
crime of embezzlement. It so happens only that failure to account, upon demand for funds or
property held in trust, is circumstantial evidence of misappropriation. The same way,
however, be established by other proof, such as that introduced in the case at bar.14
In view of the foregoing and based on the records, the prosecution was able to prove the
existence of all the elements of the crime. Private complainant gave petitioner the pieces of
jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty (60) days, if unsold. There was
misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry
sold, or if no sale took place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the
same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this
Court gives great respect to the evaluation of the trial court for it had the unique opportunity
to observe the demeanor of witnesses and their deportment on the witness stand, an
opportunity denied the appellate courts, which merely rely on the records of the case.15 The
assessment by the trial court is even conclusive and binding if not tainted with arbitrariness
or oversight of some fact or circumstance of weight and influence, especially when such
finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by
the quality of their testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on this case, the
question of the continued validity of imposing on persons convicted of crimes involving
property came up. The legislature apparently pegged these penalties to the value of the
money and property in 1930 when it enacted the Revised Penal Code. Since the members of
the division reached no unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for consideration and
resolution. Thus, several amici curiae were invited at the behest of the Court to give their
academic opinions on the matter. Among those that graciously complied were Dean Jose
Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on
oral arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel
de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this Court finds
the following:
There seems to be a perceived injustice brought about by the range of penalties that the
courts continue to impose on crimes against property committed today, based on the
amount of damage measured by the value of money eighty years ago in 1932. However, this
Court cannot modify the said range of penalties because that would constitute judicial
legislation. What the legislature's perceived failure in amending the penalties provided for in
the said crimes cannot be remedied through this Court's decisions, as that would be
encroaching upon the power of another branch of the government. This, however, does not
render the whole situation without any remedy. It can be appropriately presumed that the
framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5,
which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which are
not covered by the law, and in cases of excessive penalties. - Whenever a court has
knowledge of any act which it may deem proper to repress and which is not punishable by
law, it shall render the proper decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the degree of malice and
the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a case
which is not punishable by law and the court finds it proper to repress, the remedy is to
render the proper decision and thereafter, report to the Chief Executive, through the
Department of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is not the subject of any
penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make
that act punishable by law through legislation. The second paragraph is similar to the first
except for the situation wherein the act is already punishable by law but the corresponding
penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph
is not to suspend the execution of the sentence but to submit to the Chief Executive the
reasons why the court considers the said penalty to be non-commensurate with the act
committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for
a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in
Article 5, the duty of the court is merely to report to the Chief Executive, with a
recommendation for an amendment or modification of the legal provisions which it believes
to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is,
that there can exist no punishable act except those previously and specifically provided for
by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it necessary to
prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to
punish such act.
Under the provisions of this article the Court cannot suspend the execution of a sentence on
the ground that the strict enforcement of the provisions of this Code would cause excessive
or harsh penalty. All that the Court could do in such eventuality is to report the matter to the
Chief Executive with a recommendation for an amendment or modification of the legal
provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C.
Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised
Penal Code,21 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle that justice
must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or
justness of the penalties fixed by law. "Whether or not the penalties prescribed by law upon
conviction of violations of particular statutes are too severe or are not severe enough, are
questions as to which commentators on the law may fairly differ; but it is the duty of the
courts to enforce the will of the legislator in all cases unless it clearly appears that a given
penalty falls within the prohibited class of excessive fines or cruel and unusual punishment."
A petition for clemency should be addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against property be based on
the current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be
dangerous as this would result in uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy fluctuates and if the proposed
imposition of the penalties in crimes against property be adopted, the penalties will not
cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC
intended that to be so, it should have provided the same, instead, it included the earlier cited
Article 5 as a remedy. It is also improper to presume why the present legislature has not
made any moves to amend the subject penalties in order to conform with the present times.
For all we know, the legislature intends to retain the same penalties in order to deter the
further commission of those punishable acts which have increased tremendously through the
years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the
coverage of those who violate penal laws. In the crime of Plunder, from its original minimum
amount of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the
same way, the legislature lowered the threshold amount upon which the Anti-Money
Laundering Act may apply, from ₱1,000,000.00 to ₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not
seem to be excessive compared to the proposed imposition of their corresponding penalties.
In Theft, the provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of
the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if
the value of the thing stolen exceeds the latter amount the penalty shall be the
maximum period of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case
may be.
2. The penalty of prision correccional in its medium and maximum periods, if the
value of the thing stolen is more than 6,000 pesos but does not exceed 12,000
pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the
value of the property stolen is more than 200 pesos but does not exceed 6,000
pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property stolen is over 50 pesos but does not exceed 200
pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed
50 pesos.
 6. Arresto mayor in its minimum and medium periods, if such value does not
exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under
the circumstances enumerated in paragraph 3 of the next preceding article and the
value of the thing stolen does not exceed 5 pesos. If such value exceeds said
amount, the provision of any of the five preceding subdivisions shall be made
applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the
value of the thing stolen is not over 5 pesos, and the offender shall have acted
under the impulse of hunger, poverty, or the difficulty of earning a livelihood for
the support of himself or his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that
the penalty is prision correccional in its minimum and medium periods (6 months and 1 day
to 4 years and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00,
the penalty is imprisonment of arresto mayor in its medium period to prision correccional
minimum period (2 months and 1 day to 2 years and 4 months). It would seem that under
the present law, the penalty imposed is almost the same as the penalty proposed. In fact,
after the application of the Indeterminate Sentence Law under the existing law, the
minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto
mayor in its medium period to maximum period (2 months and 1 day to 6 months), making
the offender qualified for pardon or parole after serving the said minimum period and may
even apply for probation. Moreover, under the proposal, the minimum penalty after applying
the Indeterminate Sentence Law is arresto menor in its maximum period to arresto mayor in
its minimum period (21 days to 2 months) is not too far from the minimum period under the
existing law. Thus, it would seem that the present penalty imposed under the law is not at all
excessive. The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the
crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis of determining the proper penalty to be
imposed, would be too wide and the penalty imposable would no longer be commensurate
to the act committed and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be modified but the
penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00,
punished by prision mayor minimum to prision mayor medium (6 years and 1 day
to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished
by prision correccional medium and to prision correccional maximum (2 years, 4
months and 1 day to 6 years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by
prision correccional minimum to prision correccional medium (6 months and 1 day
to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto
mayor medium to prision correccional minimum (2 months and 1 day to 2 years
and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor
(1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto
mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but
the penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00,
punishable by prision correccional maximum to prision mayor minimum (4 years, 2
months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00,
punishable by prision correccional minimum to prision correccional medium (6
months and 1 day to 4 years and 2 months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by
arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2
years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4
months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that
the incremental penalty provided under Article 315 of the RPC violates the Equal Protection
Clause.
The equal protection clause requires equality among equals, which is determined according
to a valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
 (3) It is not limited to existing conditions only; and But in your presentation, you were fixing the amount at One Hundred Thousand
(₱100,000.00) Pesos ...
(4) It applies equally to all members of the same class.28
DEAN DIOKNO:
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which Well, my presen ... (interrupted)
violates the first requisite; the IPR was devised so that those who commit estafa involving
higher amounts would receive heavier penalties; however, this is no longer achieved, JUSTICE PERALTA:
because a person who steals ₱142,000.00 would receive the same penalty as someone who
steals hundreds of millions, which violates the second requisite; and, the IPR violates
For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
requisite no. 3, considering that the IPR is limited to existing conditions at the time the law
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you
was promulgated, conditions that no longer exist today.
right?

Assuming that the Court submits to the argument of Dean Diokno and declares the
DEAN DIOKNO:
incremental penalty in Article 315 unconstitutional for violating the equal protection clause,
what then is the penalty that should be applied in case the amount of the thing subject
matter of the crime exceeds ₱22,000.00? It seems that the proposition poses more questions Yes, Your Honor, that is, if the court will take the route of statutory interpretation.
than answers, which leads us even more to conclude that the appropriate remedy is to refer
these matters to Congress for them to exercise their inherent power to legislate laws. JUSTICE PERALTA:

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the Ah ...
remedy is to go to Congress. Thus:
DEAN DIOKNO:
xxxx
If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd. But if we de ... (interrupted)

DEAN DIOKNO: DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment. ....then....

JUSTICE PERALTA: JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix
Twenty-Two Thousand (₱22,000.00) Pesos. the amount ...

DEAN DIOKNO: DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule No, Your Honor.
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:
JUSTICE PERALTA:
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand Thank you, Dean.
(₱22,000.00) Pesos.
DEAN DIOKNO:
DEAN DIOKNO:
Thank you.
No, Your Honor.
x x x x29
JUSTICE PERALTA:
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
The Court cannot do that. unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States
Federal Supreme Court has expanded the application of a similar Constitutional provision
DEAN DIOKNO: prohibiting cruel and unusual punishment, to the duration of the penalty, and not just its
form. The court therein ruled that three things must be done to decide whether a sentence is
proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and
Could not be.
the harshness of the penalty; (2) Compare the sentences imposed on other criminals in the
same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less
JUSTICE PERALTA: serious penalties; and (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.
The only remedy is to go to Congress...
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem
DEAN DIOKNO: what respondent therein deemed cruel was the penalty imposed by the state court of South
Dakota after it took into account the latter’s recidivist statute and not the original penalty for
Yes, Your Honor. uttering a "no account" check. Normally, the maximum punishment for the crime would have
been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced
to life imprisonment without the possibility of parole under South Dakota’s recidivist statute
JUSTICE PERALTA: because of his six prior felony convictions. Surely, the factual antecedents of Solem are
different from the present controversy.
... and determine the value or the amount.
With respect to the crime of Qualified Theft, however, it is true that the imposable penalty
DEAN DIOKNO: for the offense is high. Nevertheless, the rationale for the imposition of a higher penalty
against a domestic servant is the fact that in the commission of the crime, the helper will
Yes, Your Honor. essentially gravely abuse the trust and confidence reposed upon her by her employer. After
accepting and allowing the helper to be a member of the household, thus entrusting upon
such person the protection and safekeeping of the employer’s loved ones and properties, a
JUSTICE PERALTA:
subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a
higher penalty to deter the commission of such wrongful acts.
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two
Thousand (₱22,000.00) Pesos.
There are other crimes where the penalty of fine and/or imprisonment are dependent on the
subject matter of the crime and which, by adopting the proposal, may create serious
DEAN DIOKNO: implications. For example, in the crime of Malversation, the penalty imposed depends on the
amount of the money malversed by the public official, thus:
Yes, Your Honor.
Art. 217. Malversation of public funds or property; Presumption of malversation. — Any
JUSTICE PERALTA: public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same or shall take or misappropriate or shall consent,
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos. through abandonment or negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is less
than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total
value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government loses money due to
the unlawful acts of the offender. Thus, following the proposal, if the amount malversed is
₱200.00 (under the existing law), the amount now becomes ₱20,000.00 and the penalty is
prision correccional in its medium and maximum periods (2 years 4 months and 1 day to 6
years). The penalty may not be commensurate to the act of embezzlement of ₱20,000.00
compared to the acts committed by public officials punishable by a special law, i.e., Republic
Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein
the injury caused to the government is not generally defined by any monetary amount, the
penalty (6 years and 1 month to 15 years)32 under the Anti-Graft Law will now become
higher. This should not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things (inhabited
or uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry
are the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the
thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be
the value of the thing unlawfully taken and no longer the element of force employed in
entering the premises. It may likewise cause an inequity between the crime of Qualified
Trespass to Dwelling under Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum periods (2 years, 4 months
and 1 day to 6 years) and a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is
1:100) where entrance to the premises is with violence or intimidation, which is the main
justification of the penalty. Whereas in the crime of Robbery with force upon things, it is
punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is
unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can
be imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6
months) if the value of the damage caused exceeds ₱1,000.00, but under the proposal, the
value of the damage will now become ₱100,000.00 (1:100), and still punishable by arresto
mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the
damage caused and not more than ₱200.00, if the amount involved does not exceed ₱200.00
or cannot be estimated. Under the proposal, ₱200.00 will now become ₱20,000.00, which
simply means that the fine of ₱200.00 under the existing law will now become ₱20,000.00.
The amount of Fine under this situation will now become excessive and afflictive in nature
despite the fact that the offense is categorized as a light felony penalized with a light penalty
under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be
grave implications on the penalty of Fine, but changing the same through Court decision,
either expressly or impliedly, may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may also be affected
by the proposal, such as those that impose imprisonment and/or Fine as a penalty based on
the value of the damage caused, to wit: Article 311 (Theft of the property of the National
Library and National Museum), Article 312 (Occupation of real property or usurpation of real
rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms
of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special
cases of malicious mischief) and Article 331 (Destroying or damaging statues, public
monuments or paintings). Other crimes that impose Fine as a penalty will also be affected,
such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of
accountable officer to render accounts), Article 219 (Failure of a responsible public officer to
render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes
which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68
of Presidential Decree No. 705, as amended.34 The law treats cutting, gathering, collecting
and possessing timber or other forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished
with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which
means that the penalty imposable for the offense is, again, based on the value of the timber
or forest products involved in the offense. Now, if we accept the said proposal in the crime of
Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is
concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer
is in the negative because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and Special
Laws, and other related provisions of these laws affected by the proposal, a thorough study is
needed to determine its effectivity and necessity. There may be some provisions of the law
that should be amended; nevertheless, this Court is in no position to conclude as to the
intentions of the framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is not within the
competence of the Court but of the Legislature which is empowered to conduct public
hearings on the matter, consult legal luminaries and who, after due proceedings, can decide
whether or not to amend or to revise the questioned law or other laws, or even create a new
legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-
six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each
one proposing much needed change and updates to archaic laws that were promulgated
decades ago when the political, socio-economic, and cultural settings were far different from
today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall
not usurp legislative powers by judicial legislation and that in the course of such application
or construction, it should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a
construction which is repugnant to its terms.38 The Court should apply the law in a manner
that would give effect to their letter and spirit, especially when the law is clear as to its intent
and purpose. Succinctly put, the Court should shy away from encroaching upon the primary
function of a co-equal branch of the Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence,
it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at
least three thousand pesos, even though there may have been mitigating circumstances. In
addition:
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity
shall in every case be assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the defendant, had no
earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of
Article 291, the recipient who is not an heir called to the decedent's inheritance by
the law of testate or intestate succession, may demand support from the person
causing the death, for a period not exceeding five years, the exact duration to be
fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death
of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary
restitution or compensation to the victim for the damage or infraction that was done to the
latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment
imposed to the offender, the accused is also ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity due to the death of the victim could not be
contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the
imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value
of civil indemnity awarded in some offense cannot be the same reasoning that would sustain
the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only
imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil indemnity can be validly modified and
increased when the present circumstance warrants it. Corollarily, moral damages under
Article 222039 of the Civil Code also does not fix the amount of damages that can be
awarded. It is discretionary upon the court, depending on the mental anguish or the suffering
of the private offended party. The amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as
tantamount to cruel punishment. However, all penalties are generally harsh, being punitive
in nature. Whether or not they are excessive or amount to cruel punishment is a matter that
should be left to lawmakers. It is the prerogative of the courts to apply the law, especially
when they are clear and not subject to any other interpretation than that which is plainly
written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should
only impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual
amount involved exceeds ₱22,000.00. As suggested, however, from now until the law is
properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when
every accused convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the application of the law has no
legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal xxxx
justice by the Ramos Administration by virtue of Republic Act No. 765940 in December 1993.
The said law has been questioned before this Court. There is, arguably, no punishment more JUSTICE PERALTA:
cruel than that of death. Yet still, from the time the death penalty was re-imposed until its
lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of
Yeah, Just one question. You are suggesting that in order to determine the value of Peso you
the death penalty on the ground that it is a "cruel punishment" within the purview of Section
have to take into consideration several factors.
19 (1),42 Article III of the Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non-imposition and not via the
intervention of the Court. PROFESSOR TADIAR:

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the Yes.
provision of the law from which the proper penalty emanates unconstitutional in the present
action. Not only is it violative of due process, considering that the State and the concerned JUSTICE PERALTA:
parties were not given the opportunity to comment on the subject matter, it is settled that
the constitutionality of a statute cannot be attacked collaterally because constitutionality Per capita income.
issues must be pleaded directly and not collaterally,43 more so in the present controversy
wherein the issues never touched upon the constitutionality of any of the provisions of the
Revised Penal Code. PROFESSOR TADIAR:

Besides, it has long been held that the prohibition of cruel and unusual punishments is Per capita income.
generally aimed at the form or character of the punishment rather than its severity in respect
of duration or amount, and applies to punishments which public sentiment has regarded as JUSTICE PERALTA:
cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning
at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment Consumer price index.
would not thus be within the prohibition.44
PROFESSOR TADIAR:
It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty
to be obnoxious to the Constitution. The fact that the punishment authorized by the statute
Yeah.
is severe does not make it cruel and unusual. Expressed in other terms, it has been held that
to come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of the JUSTICE PERALTA:
community."45
Inflation ...
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to
our modern time. PROFESSOR TADIAR:

The solution to the present controversy could not be solved by merely adjusting the Yes.
questioned monetary values to the present value of money based only on the current
inflation rate. There are other factors and variables that need to be taken into consideration, JUSTICE PERALTA:
researched, and deliberated upon before the said values could be accurately and properly
adjusted. The effects on the society, the injured party, the accused, its socio-economic
... and so on. Is the Supreme Court equipped to determine those factors?
impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at
a wholistic change that all of us believe should be made to our existing law. Dejectedly, the
Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public PROFESSOR TADIAR:
hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal
Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar There are many ways by which the value of the Philippine Peso can be determined utilizing
concedes to this conclusion, to wit: all of those economic terms.
JUSTICE PERALTA: Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view
that the role of the Court is not merely to dispense justice, but also the active duty to
Yeah, but ... prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court
should not impose an obsolete penalty pegged eighty three years ago, but consider the
proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in
PROFESSOR TADIAR:
the past taken into consideration "changed conditions" or "significant changes in
circumstances" in its decisions.
And I don’t think it is within the power of the Supreme Court to pass upon and peg the value
to One Hundred (₱100.00) Pesos to ...
Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in
JUSTICE PERALTA: crimes against persons, which the Court had previously adjusted in light of current times, like
in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a
Yeah. presumption that the lawmaking body intended right and justice to prevail.

PROFESSOR TADIAR: With due respect to the opinions and proposals advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being
... One (₱1.00.00) Peso in 1930. repetitious and as extensively discussed above, it is truly beyond the powers of the Court to
legislate laws, such immense power belongs to Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers
JUSTICE PERALTA: to civil liability which is awarded to the offended party as a kind of monetary restitution. It is
truly based on the value of money. The same cannot be said on penalties because, as earlier
That is legislative in nature. stated, penalties are not only based on the value of money, but on several other factors.
Further, since the law is silent as to the maximum amount that can be awarded and only
PROFESSOR TADIAR: pegged the minimum sum, increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current conditions.
That is my position that the Supreme Court ...
Now, with regard to the penalty imposed in the present case, the CA modified the ruling of
the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of
JUSTICE PERALTA:
prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum period, as maximum. However, the CA imposed
Yeah, okay. the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each
PROFESSOR TADIAR: additional ₱10,000.00, or a total of seven (7) years.

... has no power to utilize the power of judicial review to in order to adjust, to make the In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is
adjustment that is a power that belongs to the legislature. highly instructive, thus:

JUSTICE PERALTA: With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

Thank you, Professor. ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
PROFESSOR TADIAR:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
Thank you.46 minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000
pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each additional 10,000 pesos;
but the total penalty which may be imposed shall not exceed twenty years. In such case, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in which
case, Article 65 of the same Code requires the division of the time included in the penalty
into three equal portions of time included in the penalty prescribed, forming one period of
each of the three portions. Applying the latter provisions, the maximum, medium and
minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
dated September 5, 2007 of the Court of Appeals, which affirmed with modification the
Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City,
finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with
MODIFICATION that the penalty imposed is the indeterminate penalty of imprisonment
ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional,
as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of
the House of Representatives.

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49 SO ORDERED.

To compute the maximum period of the prescribed penalty, prisión correccional maximum to
prisión mayor minimum should be divided into three equal portions of time each of which
portion shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In
the present case, the amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the
maximum penalty imposable should be within the maximum period of 6 years, 8 months and
21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be
added to the penalty for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but
in no case shall the total penalty which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling
set by law, then, adding one year for each additional ₱10,000.00, the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 7
years. Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7
years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa
charge against petitioner is prision correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months
and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of
lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of
making and enacting laws. While it may be the most expeditious approach, a short cut by
judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial
legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution
 Republic of the Philippines The accused was driving an automobile at the rate of 30 miles an hour on a highway 6 meter
SUPREME COURT wide, notwithstanding the fact that he had to pass a narrow space between a wagon
Manila standing on one side of the road and a heap of stones on the other side where the were two
young boys, the appellant did not take the precaution required by the circumstances by
EN BANC slowing his machine, and did not proceed with the vigilant care that under the circumstances
an ordinary prudent man would take in order to avoid possible accidents that might occur, as
unfortunately did occur, as his automobile ran over the boy Porfirio Parondo who was
G.R. No. 17584 March 8, 1922
instantly killed as the result of the accident.

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,

These facts are so well established in the records that there cannot be a shade of doubt
vs.
about them.
GREGORIO SANTIAGO, defendant-appellant.

Coming now to the other assignments of error, it will be seen that they deal with the
L. Porter Hamilton for appellant.
fundamental questions as to whether or not Act No. 2886, under which the complaint in the
Acting Attorney-General Tuason for appellee.
present case was filed, is valid and constitutional.

ROMUALDEZ, J.:
This Act is attacked on account of the amendments that it introduces in General Orders No.
58, the defense arguing that the Philippine Legislature was, and is, not authorized to amend
Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with General Orders No. 58, as it did by amending section 2 thereof because its provisions have
automobile that he was driving, the herein appellant was prosecuted for the crime of the character of constitutional law. Said section 2 provides as follows:
homicide by reckless negligence and was sentenced to suffer one year and one day of prision
correccional, and to pay the costs of the trial.
All prosecutions for public offenses shall be in the name of the United States
against the persons charged with the offenses. (G. O. No. 58, sec. 2 ).
Not agreeable with that sentence he now comes to this court alleging that the court below
committed four errors, to wit:
Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is made
the plaintiff in this information, contains the following provisions in section 1:
1. The trial court erred in not taking judicial notice of the fact that the appellant
was being prosecuted in conformity with Act No. 2886 of the Philippine Legislature
SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen
and that the Act is unconstitutional and gave no jurisdiction in this case.
hundred, is hereby amended to read as follows:

2. The lower court erred in not dismissing the complaint after the presentation of
"SEC. 2. All prosecutions for public offenses shall be in the name of the
the evidence in the case, if not before, for the reason that said Act No. 2886 is
People of the Philippine Islands against the persons charged with the
unconstitutional and the proceedings had in the case under the provisions of the
offense."
Act constitute a prosecution of appellant without due process of law.

Let us examine the question.

3. The court a quo erred in not finding that it lacked jurisdiction over the person of
the accused and over the subject- matter of the complaint.
For practical reasons, the procedure in criminal matters is not incorporated in the
Constitutions of the States, but is left in the hand of the legislatures, so that it falls within the
4. The trial court erred in finding the appellant guilty of the crime charged and in
realm of public statutory law.
sentencing him to one year and one day of prison correccional and to the payment
of costs.
As has been said by Chief Justice Marshall:
With regard to the questions of fact, we have to say that we have examined the record and
find that the conclusions of the trial judge, as contained in his well-written decision, are A constitution, to contain an accurate detail of all the Subdivisions of which its
sufficiently sustained by the evidence submitted. great powers will admit, and of all the means by which they may be carried into
execution, would partake of a prolixity of a legal code, and could scarcely be
 embraced by the human mind. It would probably never be understood by the
public. (M'Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed., 579.)
That is why, in pursuance of the Constitution of the United States, each States, each State
has the authority, under its police power, to define and punish crimes and to lay down the
rules of criminal procedure.
The states, as a part of their police power, have a large measure of discretion in
creating and defining criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the equal protection
of the laws if it prescribes a different procedure in the case of persons in like
situation. Subject to this limitation, however, the legislature has large measure of
discretion in prescribing the modes of criminal procedure. . . . (12 C.J., 1185, 1186.
See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-
Carpenter Co. vs. Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn
vs. Flancders, 141 Ga., 500; 81 S.E., 205.)
This power of the States of the North American Union was also granted to its territories such
as the Philippines:
The plenary legislative power which Congress possesses over the territories and
possessions of the United States may be exercised by that body itself, or, as is
much more often the case, it may be delegated to a local agency, such as a
legislature, the organization of which proceeds upon much the same lines as in the
several States or in Congress, which is often taken as a model, and whose powers
are limited by the Organic Act; but within the scope of such act is has complete
authority to legislate, . . . and in general, to legislate upon all subjects within the
police power of the territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from Congress. By act of
Congress their power extends "to all rightful subjects of legislation not inconsistent
with the Constitution and laws of the United States;" and this includes the power to
define and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army of occupation,
functioning as a territorial legislature, thought it convenient to establish new rules of
procedure in criminal matters, by the issuance of General Orders No. 58, the preamble of
which reads:
In the interests of justice, and to safeguard the civil liberties of the inhabitants of
these Islands, the criminal code of procedure now in force therein is hereby
amended in certain of its important provisions, as indicated in the following
enumerated sections. (Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its
provisions the effect of law in criminal matters. For that reason it provides in section 1 that:
The following provisions shall have the force and effect of law in criminal matters in
the Philippine Islands from and after the 15th day of May, 1900, but existing laws
on the same subjects shall remain valid except in so far as hereinafter modified or
repealed expressly or by necessary implication.
From what has been said it clearly follows that the provisions of this General Order do not
the nature of constitutional law either by reason of its character or by reason of the authority
that enacted it into law.
It cannot be said that it has acquired this character because this order was made its own by
the Congress of the United States for, as a mater of fact, this body never adopted it as a law
of its own creation either before the promulgation of Act No. 2886, herein discussed, or, to
our knowledge, to this date.
Since the provisions of this General Order have the character of statutory law, the power of
the Legislature to amend it is self-evident, even if the question is considered only on
principle. Our present Legislature, which has enacted Act No. 2886, the subject of our
inquiry, is the legal successor to the Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the legislative branch of our
government has undergone transformations and has developed itself until it attained its
present form. Firstly, it was the Military Government of the army of occupation which, in
accordance with international law and practice, was vested with legislative functions and in
fact did legislate; afterwards, complying with the instructions of President McKinley which
later were ratified by Congress (sec. 1 of the Act of July 1, 1902) the legislative powers of the
Military Government were transferred to the Philippine Commission; then, under the
provisions of section 7 of the Act of Congress of July 1, 1902, the Philippine Assembly was
created and it functioned as a colegislative body with the Philippine Commission. Finally, by
virtue of the provisions of sections 12 of the Act of Congress of August 29, 1916, known as
the Jones Law, the Philippine Commission gave way to the Philippine Senate, the Philippine
Assembly became the House of Representatives, and thus was formed the present
Legislature composed of two Houses which has enacted the aforesaid Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The
Philippine Commission, at various times, had amended it by the enactment of laws among
which we may cite Act No. 194, regarding preliminary investigation, Act No. 440 relating to
counsels de oficio and Act No. 590 about preliminary investigations by justices of the peace
of provincial capitals. Later on, and before the enactment of Act No. 2886, herein
controverted, the Legislature had also amended this General Orders No. 58 by the enactment
of Act No. 2677 regarding appeals to the Supreme Court of causes originating in the justice of
the peace courts and by Act No. 2709 which deals with the exclusion of accused persons
from the information in order to be utilized as state's witnesses.
These amendments repeatedly made by the Philippine Commission as well as by our present
Legislature are perfectly within the scope of the powers of the said legislative bodies as the
successors of the Military Government that promulgated General Orders No. 58.
No proof is required to demonstrate that the present Legislature had, and had, the power to
enact and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That it has the power to legislate on criminal
matters is very evident from the wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment to amend, alter, modify, or repeal any
law, civil or criminal, continued in force by this Act as it may from time to time see
fit.
It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This
assertion is right; but it is also true that by reason of the principle of territoriality as applied
in the supression, of crimes, such power is delegated to subordinate government
subdivisions such as territories. As we have seen in the beginning, the territorial legislatures
have the power to define and punish crimes, a power also possessed by the Philippine
Legislature by virtue of the provisions of sections 7, already quoted, of the Jones Law. These
territorial governments are local agencies of the Federal Government, wherein sovereignty
resides; and when the territorial government of the Philippines prosecutes and punishes
public crimes it does so by virtue of the authority delegated to it by the supreme power of
the Nation.
This delegation may be made either expressly as in the case of the several States of the
Union and incorporated territories like Porto Rico and Hawaii, or tacitly as is the case with
the Philippines, which is an organized territory though not incorporated with the Union.
(Malcolm, Philippine Constitutional Law, 181-205.)
This tacit delegation to our Government needs no demonstration. As a matter of fact, the
crimes committed within our territory, even before section 2 of General Orders No. 58 was
amended, were prosecuted and punished in this jurisdiction as is done at present; but then
as now the repression of crimes was done, and is still done, under the sovereign authority of
the United States, whose name appears as the heading in all pleadings in criminal causes and
in other judicial papers and notarial acts.
The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code of
Civil Procedure; in criminal causes the constant practice followed in this jurisdiction
established its use; and in notarial matters its use is provided by section 127 of Act No. 496.
This long continued practice in criminal matters and the legal provision relating to civil cases
and notarial acts have not been amended by any law, much less by Act No. 2886, the subject
of the present inquiry.
There is not a single constitutional provision applicable to the Philippines prescribing the
name to be used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and in a transitory
stage, is, in our opinion, responsible for the fact that there is no positive provision in our
constitutional law regarding the use of the name of the People of the Philippine Islands, as
party plaintiff, in criminal prosecutions, as is otherwise the case in the respective
constitutional charters of the States of the Union and incorporated territories — a situation
which must not be understood as depriving the Government of the Philippines of its power,
however delegated, to prosecute public crimes. The fact is undeniable that the present
government of the Philippines, created by the Congress of the United States, is autonomous.
This autonomy of the Government of the Philippines reaches all judicial actions, the case at
bar being one of them; as an example of such autonomy, this Government, the same as that
of Hawaii and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L.
ed., 507; 33 Sup. Ct. Rep., 352) cannot be sued without its consent. (Merritt vs. Government
of the Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison, p. 27, ante.) The
doctrine, laid down in these cases, acknowledges the prerogative of personality in the
Government of the Philippines, which, if it is sufficient to shield it from any responsibility in
court in its own name unless it consents thereto, it should be also, as sufficiently
authoritative in law, to give that government the right to prosecute in court in its own name
whomsoever violates within its territory the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the complaint in criminal
matters, it is within the power of the Legislature to prescribe the form of the criminal
complaint as long as the constitutional provision of the accused to be informed of the nature
of the accusation is not violated.
Under the Constitution of the United States and by like provisions in the
constitutions of the various states, the accused is entitled to be informed of the
nature and cause of the accusation against him . . .
It is within the power of the legislatures under such a constitutional provision to
prescribe the form of the indictment or information, and such form may omit
averments regarded as necessary at common law. (22 Cyc., 285.)
All these considerations a priori are strengthened a posteriori by the important reason
disclosed by the following fact — that the Congress has tacitly approved Act No. 2886. Both
the Act of Congress of July 1, 1902, section 86, and the Jones Law, last paragraph of section
19, provide that all the laws enacted by the Government of the Philippines or its Legislature
shall be forwarded to the Congress of the United States, which body reserves the right and
power to annul them. And presuming, as legally we must, that the provisions of these laws
have been complied with, it is undisputed that the Congress of the United States did not
annul any of those acts already adverted to — Nos. 194, 440, 490 (of the Philippine
Commission), and 2677, 2709 and the one now in question No. 2886 (of the present
Legislature) — all of which were amendatory of General Orders No. 58. The Act now under
discussion (No. 2886) took effect on February 24, 1920, and the criminal complaint in this
case was filed on May 10, 1920. The silence of Congress regarding those laws amendatory of
the said General Order must be considered as an act of approval.
 If Congress fails to notice or take action on any territorial legislation the reasonable
inference is that it approves such act. (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13
Wall., 434; 20 [L. ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L.
ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A., 315.)

Furthermore, supposing for the sake of argument, that the mention of the People of the
Philippine Islands as plaintiff in the title of the information constitutes a vice or defect, the
same is not fatal when, as in the present case, it was not objected to in the court below.

An indictment must, in many states under express statutory or constitutional

provision, show by its title or by proper recitals in the caption or elsewhere that the
prosecution is in the name and by the authority of the state, the commonwealth,
or the people of the state, according to the practice in the particular jurisdictions;
but omissions or defects in this respect may be supplied or cured by other parts of
the records, and the omissions of such a recital or defects therein, even when
required by the constitution or by statute, is a defect of form within a statute
requiring exceptions for defect of form to be made before trial. (23 Cyc., 237, 238.)

We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No.
2886, do not partake of the same character as the provisions of a constitution; that the said
Act No. 2886 is valid and is not violative of any constitutional provisions and that the court a
quo did not commit any of the errors assigned.

The sentence appealed from is hereby affirmed, the appellant being furthermore sentenced
to the accessory penalties prescribed in article 61 of the Penal Code, and to indemnify the
heirs of the deceased in the sum of P1,000 and to the payment of the costs of both instances.
So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11676 October 17, 1916
THE UNITED STATES, plaintiff-appellee,
vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality of
Balanga, went by order of his chief to the barrio of Tuyo to raid a jueteng game which,
according to the information lodged, was being conducted in that place; but before the said
officer arrived there the players, perhaps advised of his approach by a spy, left and ran away;
however, on his arrival at a vacant lot the defendant there found Francisco Dato and, at a
short distance away, a low table. After a search of the premises he also found thereon a
tambiolo (receptacle) and 37 bolas (balls). Notwithstanding that the officer had seen the men
Maximo Malicsi and Antonio Rodrigo leave the said lot, yet, as at first he had seen no
material proof that the game was being played, he refrained from arresting them, and on
leaving the place only arrested Francisco Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a memorandum
containing the following statement: "In the barrio of Tuyo I raided a jueteng na bilat game,
seized a tambiolo and bolas, and saw the cabecillas Maximo MAlicsi and Antonio Rodrigo and
the gambler Francisco Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in the
court of justice of the peace charging the said Rodrigo, Malicsi, and Dato with having
gambled at jueteng, in violation of municipal ordinance No. 5. As a result of this complaint
the accused were arrested, but were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo
Malicsi and Antonio Rodrigo, pleaded not guilty; therefore, during the trial the chief of police
presented the memorandum exhibited by the policeman Andres Pablo, who testified under
oath that on the date mentioned he and Tomas de Leon went to the said barrio to raid a
jueteng game, but that before they arrived there they saw from afar that some persons
started to run toward the hills; that when witness and his companion arrived at a vacant lot
they saw Francisco Dato and a low table there, and the table caused them to suspect that a
jueteng game was being carried on; that in fact they did find on one side of the lot a tambiolo
and 37 bolas, but that they did not see the accused Rodrigo and Malicsi on the said lot, nor
did they see them run; and that only afterwards did the witness learn that these latter were
the cabecillas or ringleaders in the jueteng game, from information given him by an unknown
person. In view of this testimony by the police officer who made the arrest and of the other
evidence adduced at the trial the court acquitted the defendants Antonio Rodrigo and
Maximo Malicsi and sentenced only Francisco Dato, as a gambler.
Before the case came to trial in the justice of the peace court the policeman Andres Pablo
had an interview and conference with the accused Malicsi and ROdrigo in the house of
Valentin Sioson. On this occasion he was instructed not to testify against Malicsi and Rodrigo,
and in fact received through Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation the provincial fiscal,
on December 1, 1915, filed an information in the Court of First Instance of Bataan charging
Andres Pablo with the crime of perjury, under the provisions of section 3 of Act No. 1697.
The following is an extract from the complaint:
That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I.,
and within the jurisdiction of this court, the said accused, Andres Pablo, during the
hearing in the justice of the peace court of Balanga of the criminal cause No. 787,
entitled the United States vs. Antonio Rodrigo and Maximo Malicsi, for violation of
Municipal Ordinance No. 5 of the municipality of Balanga, did, willfully, unlawfully
and feloniously affirm and swear in legal form before the justice of the peace court
as follow: `We did not there overtake the accused Antonio Rodrigo and Maximo
Malicsi, nor did we even see them run,' the said statement being utterly false, as
the accused well knew that it was, and material to the decision of the said criminal
cause No. 787, United States vs. Antonio Rodrigo and Maximo Malicsi. An act
committed with violation of law.
The case came to trial and on December 28, 1915, the court rendered judgment therein
sentencing the defendant to the penalty of two years' imprisonment, to pay a fine of P100
and, in case of insolvency, to the corresponding subsidiary imprisonment, and to pay the
costs. The defendant was also disqualified from thereafter holding any public office and from
testifying in the courts of the Philippine Islands until the said disqualification should be
removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and
Tomas de Leon arrived at the place where the jueteng was being played, they found the
defendant gamblers, Malicsi and Rodrigo; that, prior to the hearing of the case in the justice
of the peace court, Malicsi and Rodrigo ordered him to call Andres Pablo, who, together with
witness, went to the house of Valentin Sioson, where they held a conference; that witness
pleaded guilty in the justice of the peace court, in fulfillment of his part of an agreement
made between himself and his two coaccused, Malicsi and Rodrigo, who promised him that
they would support his family during the time he might be a prisoner in jail; that Andres
Pablo did not know that they were gamblers, because he did not find them in the place
where the game was in progress, but that when witness was being taken to the municipal
building by the policemen he told them who the gamblers were who had run away and
whom Andres Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival
of the policemen who made the arrest and while they were looking for the tambiolo, he
succeeded in escaping; that Andres Pablo had known him for a long time and could have
arrested him had he wished to do so; that prior to the hearing he and his codefendants,
ROdrigo and Dato, did in fact meet in the house of Valentin Sioson, on which occasion they
agreed that they would give the policemen Andres Pablo P20, provided witness and Rodrigo
were excluded from the charge; and that only P15 was delivered to the said Pablo, through
Gregorio Ganzon. This statement was corroborated by the latter, though he said nothing
about what amount of money he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by the justice of
the peace how he could have seen Maximo Malicsi and Antonio Rodrigo, he replied that he
did not see them at the place where the game was being conducted nor did he see them run
away from there, for he only found the table, the tambiolo, the bolas, and Francisco Dato;
that he did not surprise the game because the players ran away before he arrived on the lot
where, after fifteen minutes' search, he found only the tambiolo and the bolas; that on
arriving at the place where the game was played, they found only Francisco Dato and some
women in the Street, and as Dato had already gone away, witness' companion, the
policeman Tomas de Leon, got on his bicycle and went after him; and that he found the
tambiolo at a distance of about 6 meters from a low table standing on the lot.
From the facts above related, it is concluded that the defendant Andres Pablo, who pleaded
not guilty, falsely testified under oath in the justice of the peace court of Balanga, Bataan, in
saying he had not seen the alleged gamblers Maximo Malicsi and Antonio Rodrigo in the
place where, according to the complaint filed, the game of jueteng was being played and
where the defendant and his companion, the policeman Tomas de Leon, had found a table,
tambiolo and bolas, used in the game of jueteng, while it was proved at the trial that he did
not them and did overtake them while they were still in the place where the game was being
played. But notwithstanding his having seen them there, upon testifying in the cause
prosecuted against these men and another for gambling, he stated that he had not seen
them there, knowing that he was not telling the truth and was false to the oath he had taken,
and he did so willfully and deliberately on account of his agreement with the men, Malicsi
and Rodrigo, and in consideration of a bribe of P15 which he had received in payment for his
false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman Andres
Pablo undertook to exclude the gamblers, Malicsi and Rodrigo, from the charge and from his
testimony in consideration for P15 which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards convicted under Act
No. 1697, which (according to the principle laid down by this court in various decisions that
are already well-settled rules of law) repealed the provisions contained in articles 318 to 324
of the Penal Code relative to false testimony.
By the second paragraph of the final section of the last article of the Administrative Code, or
Act No. 2657, there was repealed, among the other statutes therein mentioned, the said Act
No. 1697 relating to perjury, and the repealing clause of the said Administrative Code does
not say under what other penal law in force the crime of false testimony, at least, if not that
of perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false testimony go unpunished,
and is there no penal sanction whatever in this country for this crime? May the truth be
freely perverted in testimony given under oath and which, for the very reason that it may
save a guilty person from punishment, may also result in the conviction and punishment of
an innocent person? If all this is not possible and is not right before the law and good morals
in a society of even mediocre culture, it must be acknowledged that it is imperatively
necessary to punish the crime of perjury or of false testimony — a crime which can produce
incalculable and far-reaching harm to society and cause infinite disturbance of social order.
The right of prosecution and punishment for a crime is one of the attributes that by a natural
law belongs to the sovereign power instinctively charged by the common will of the
members of society to look after, guard and defend the interests of the community, the
individual and social rights and the liberties of every citizen and the guaranty of the exercise
of his rights.
The power to punish evildoers has never been attacked or challenged, as the necessity for its
existence has been recognized even by the most backward peoples. At times the criticism has
been made that certain penalties are cruel, barbarous, and atrocious; at other, that they are
light and inadequate to the nature and gravity of the offense, but the imposition of
punishment is admitted to be just by the whole human race, and even barbarians and
savages themselves, who are ignorant of all civilization, are no exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its
decisions, was deemed to have repealed the aforementioned article of the Penal Code
relating to false testimony, comprised within the term of perjury) did not expressly repeal the
said articles of the Penal Code; and as the said final article of the Administrative Code, in
totally repealing Act No. 1697, does not explicitly provide that the mentioned articles of the
Penal Code are also repealed, the will of the legislation not being expressly and clearly stated
with respect to the complete or partial repeal of the said articles of the Penal Code, in the
manner that it has totally repealed the said Act No. 1697 relating its perjury; and,
furthermore, as it is imperative that society punish those of its members who are guilty of
perjury or false testimony, and it cannot be conceived that these crimes should go
unpunished or be freely committed without punishment of any kind, it must be conceded
that there must be in this country some prior, preexistent law that punishes perjury or false
testimony.
There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title
2, third Partida.
However, since the Penal Code went into force, the crime of false testimony has been
punished under the said articles of the said Code, which as we have already said, have not
been specifically repealed by the said Act No. 1697, but since its enactment, have not been
applied, by the mere interpretation given to them by this court in its decisions; yet, from the
moment that Act was repealed by the Administrative Code, the needs of society have made it
necessary that the said articles 318 to 324 should be deemed to be in force, inasmuch as the
Administrative Code, in repealing the said Act relating to perjury, has not explicitly provided
that the said articles of the Penal Code have likewise been repealed.

This manner of understanding and construing the statutes applicable to the crime of false
testimony or perjury is in harmony with the provision of Law 11, Title 2, Book 3, of the
Novisima Recopilacion which says::

All the laws of the kingdom, not expressly repealed by other subsequent laws, must
be literally obeyed and the excuse that they are not in use cannot avail; for the
Catholic kings and their successors so ordered in numerous laws, and so also have I
ordered on different occasions, and even though they were repealed, it is seen that
they have been revived by the decree which I issued in conformity with them
although they were not expressly designated. The council will be informed thereof
and will take account of the importance of the matter.

It is, then, assumed that the said articles of the Penal Code are in force and are properly
applicable to crimes of false testimony. Therefore, in consideration of the fact that in the
case at bar the evidence shows it to have been duly proven that the defendant, Andres
Pablo, in testifying in the cause prosecuted for gambling at jueteng, perverted the truth, for
the purpose of favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with the
aggravating circumstance of the crime being committed through bribery, for it was also
proved that the defendant Pablo received P15 in order that he should make no mention of
the said two gamblers in his sworn testimony, whereby he knowingly perverted the truth, we
hold that, in the commission of the crime of false testimony, there concurred the aggravating
circumstance of price or reward, No. 3 of article 10 of the Code, with no mitigating
circumstance to offset the effects of the said aggravating one; wherefore the defendant has
incurred the maximum period of the penalty of arresto mayor in its maximum degree to
prision correccional in its medium degree, and a fine.

For the foregoing reasons, we hereby reverse the judgment appealed from and sentence
Andres Pablo to the penalty of two years four months and one day of prision correccional, to
pay a fine of 1,000 pesetas, and, in case of insolvency, to suffer the corresponding subsidiary
imprisonment, which shall not exceed one-third of the principal penalty. He shall also pay the
costs of both instances. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169364 September 18, 2009
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y MEFANIA, Respondents.
DECISION
YNARES-SANTIAGO, J.:
If a man is called to be a street sweeper, he should sweep streets even as Michelangelo
painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep
streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great
street sweeper who did his job well.
– Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order1 of Branch 11,
Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting respondents’
Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised Penal Code
unconstitutional.
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy
pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations dated
November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003
and raffled to Branch 3 of the Municipal Trial Court in Cities, Davao City. The Informations,
read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully and
feloniously wandered and loitered around San Pedro and Legaspi Streets, this City, without
any visible means to support herself nor lawful and justifiable purpose.2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical
ability to work and who neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places or
tramping or wandering about the country or the streets without visible means of
support;
3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps
and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this
Code, shall be found loitering in any inhabited or uninhabited place belonging to
another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished by
arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor
in its medium period to prision correccional in its minimum period or a fine ranging from 200
to 2,000 pesos, or both, in the discretion of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate Motions
to Quash3 on the ground that Article 202 (2) is unconstitutional for being vague and
overbroad.
In an Order4 dated April 28, 2004, the municipal trial court denied the motions and directed
respondents anew to file their respective counter-affidavits. The municipal trial court also
declared that the law on vagrancy was enacted pursuant to the State’s police power and
justified by the Latin maxim "salus populi est suprem(a) lex," which calls for the
subordination of individual benefit to the interest of the greater number, thus:
Our law on vagrancy was enacted pursuant to the police power of the State. An authority on
police power, Professor Freund describes laconically police power "as the power of
promoting public welfare by restraining and regulating the use of liberty and property."
(Citations omitted). In fact the person’s acts and acquisitions are hemmed in by the police
power of the state. The justification found in the Latin maxim, salus populi est supreme (sic)
lex" (the god of the people is the Supreme Law). This calls for the subordination of individual
benefit to the interests of the greater number.In the case at bar the affidavit of the arresting
police officer, SPO1 JAY PLAZA with Annex "A" lucidly shows that there was a prior
surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the
place where the two accused (among other women) were wandering and in the wee hours of
night and soliciting male customer. Thus, on that basis the prosecution should be given a
leeway to prove its case. Thus, in the interest of substantial justice, both prosecution and
defense must be given their day in Court: the prosecution proof of the crime, and the author
thereof; the defense, to show that the acts of the accused in the indictment can’t be
categorized as a crime.5
The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1
Jay Plaza, it was stated that there was a prior surveillance conducted on the two accused in
an area reported to be frequented by vagrants and prostitutes who solicited sexual favors.
Hence, the prosecution should be given the opportunity to prove the crime, and the defense
to rebut the evidence.1avvphi1
Respondents thus filed an original petition for certiorari and prohibition with the Regional
Trial Court of Davao City,6 directly challenging the constitutionality of the anti-vagrancy law,
claiming that the definition of the crime of vagrancy under Article 202 (2), apart from being
vague, results as well in an arbitrary identification of violators, since the definition of the
crime includes in its coverage persons who are otherwise performing ordinary peaceful acts.
They likewise claimed that Article 202 (2) violated the equal protection clause under the
Constitution because it discriminates against the poor and unemployed, thus permitting an
arbitrary and unreasonable classification.
Loitering about and wandering have become national pastimes particularly in these times of
recession when there are many who are "without visible means of support" not by reason of
choice but by force of circumstance as borne out by the high unemployment rate in the
entire country.
To authorize law enforcement authorities to arrest someone for nearly no other reason than
the fact that he cannot find gainful employment would indeed be adding insult to injury.10
On its pronouncement that Article 202 (2) violated the equal protection clause of the
Constitution, the trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present
runs afoul of the equal protection clause of the constitution as it offers no reasonable
classification between those covered by the law and those who are not.

The State, through the Office of the Solicitor General, argued that pursuant to the Court’s
Class legislation is such legislation which denies rights to one which are accorded to others,
ruling in Estrada v. Sandiganbayan,7 the overbreadth and vagueness doctrines apply only to
or inflicts upon one individual a more severe penalty than is imposed upon another in like
free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be
case offending.
presumed valid and constitutional, since the respondents failed to overcome this
presumption.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the
Revised Penal Code offers no guidelines or any other reasonable indicators to differentiate
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the
those who have no visible means of support by force of circumstance and those who choose
dispositive portion of which reads:
to loiter about and bum around, who are the proper subjects of vagrancy legislation, it
cannot pass a judicial scrutiny of its constitutionality.11
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED.
Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared unconstitutional and
Hence, this petition for review on certiorari raising the sole issue of:
the Order of the court a quo, dated April 28, 2004, denying the petitioners’ Motion to Quash
is set aside and the said court is ordered to dismiss the subject criminal cases against the
petitioners pending before it. WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DECLARING
UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE 12
SO ORDERED.8
Petitioner argues that every statute is presumed valid and all reasonable doubts should be
resolved in favor of its constitutionality; that, citing Romualdez v. Sandiganbayan,13 the
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it
overbreadth and vagueness doctrines have special application to free-speech cases only and
violated the equal protection clause. It held that the "void for vagueness" doctrine is equally
are not appropriate for testing the validity of penal statutes; that respondents failed to
applicable in testing the validity of penal statutes. Citing Papachristou v. City of Jacksonville,9
overcome the presumed validity of the statute, failing to prove that it was vague under the
where an anti vagrancy ordinance was struck down as unconstitutional by the Supreme Court
standards set out by the Courts; and that the State may regulate individual conduct for the
of the United States, the trial court ruled:
promotion of public welfare in the exercise of its police power.

The U.S. Supreme Court’s justifications for striking down the Jacksonville Vagrancy Ordinance
are equally applicable to paragraph 2 of Article 202 of the Revised Penal Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering about public
or semi-public buildings or places or tramping or wandering about the country or the streets
without visible means of support" offers too wide a latitude for arbitrary determinations as
to who should be arrested and who should not.
On the other hand, respondents argue against the limited application of the overbreadth and
vagueness doctrines. They insist that Article 202 (2) on its face violates the constitutionally-
guaranteed rights to due process and the equal protection of the laws; that the due process
vagueness standard, as distinguished from the free speech vagueness doctrine, is adequate
to declare Article 202 (2) unconstitutional and void on its face; and that the presumption of
constitutionality was adequately overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative in
nature and inherent in the sovereign power of the state to maintain social order as an aspect
of police power. The legislature may even forbid and penalize acts formerly considered
innocent and lawful provided that no constitutional rights have been abridged.14 However, in
exercising its power to declare what acts constitute a crime, the legislature must inform the
citizen with reasonable precision what acts it intends to prohibit so that he may have a
certain understandable rule of conduct and know what acts it is his duty to avoid.15 This
requirement has come to be known as the void-for-vagueness doctrine which states that "a
statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."16
In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the void-for-
vagueness doctrine to criminal statutes in appropriate cases. The Court therein held:
At the outset, we declare that under these terms, the opinions of the dissent which seek to
bring to the fore the purported ambiguities of a long list of provisions in Republic Act No.
8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in the
instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of
Republic Act No. 8189 – the provisions upon which petitioners are charged. An expanded
examination of the law covering provisions which are alien to petitioners’ case would be
antagonistic to the rudiment that for judicial review to be exercised, there must be an
existing case or controversy that is appropriate or ripe for determination, and not conjectural
or anticipatory.18
The first statute punishing vagrancy – Act No. 519 – was modeled after American vagrancy
statutes and passed by the Philippine Commission in 1902. The Penal Code of Spain of 1870
which was in force in this country up to December 31, 1931 did not contain a provision on
vagrancy.19 While historically an Anglo-American concept of crime prevention, the law on
vagrancy was included by the Philippine legislature as a permanent feature of the Revised
Penal Code in Article 202 thereof which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical
ability to work and who neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places, or
tramping or wandering about the country or the streets without visible means of
support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps
and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this
Code, shall be found loitering in any inhabited or uninhabited place belonging to
another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be punished by
arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor
in its medium period to prision correccional in its minimum period or a fine ranging from 200
to 2,000 pesos, or both, in the discretion of the court.
In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any
person found loitering about public or semi-public buildings or places, or tramping or
wandering about the country or the streets without visible means of support. This provision
was based on the second clause of Section 1 of Act No. 519 which defined "vagrant" as
"every person found loitering about saloons or dramshops or gambling houses, or tramping
or straying through the country without visible means of support." The second clause was
essentially retained with the modification that the places under which the offense might be
committed is now expressed in general terms – public or semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support
mainly from the U.S. Supreme Court’s opinion in the Papachristou v. City of Jacksonville20
case, which in essence declares:
Living under a rule of law entails various suppositions, one of which is that "[all persons] are
entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey,
306 U. S. 451, 306 U. S. 453.
Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of
the offending conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391;
Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the
field of regulatory statutes governing business activities, where the acts limited are in a
narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U.
S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo,
332 U. S. 1.
The poor among us, the minorities, the average householder, are not in business and not
alerted to the regulatory schemes of vagrancy laws; and we assume they would have no
understanding of their meaning and impact if they read them. Nor are they protected from
being caught in the vagrancy net by the necessity of having a specific intent to commit an
unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United
States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are
normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make
criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the "habitual"
wanderer or, as the ordinance describes it, "common night walkers." We know, however,
from experience that sleepless people often walk at night, perhaps hopeful that sleep-
inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a
national virtue in his Commonwealth, and that it should be encouraged. It is, however, a
crime in Jacksonville.
xxxx
Persons "wandering or strolling" from place to place have been extolled by Walt Whitman
and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap
for innocent acts. Persons "neglecting all lawful business and habitually spending their time
by frequenting . . . places where alcoholic beverages are sold or served" would literally
embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or
loiterers may be "casing" a place for a holdup. Letting one's wife support him is an intra-
family matter, and normally of no concern to the police. Yet it may, of course, be the setting
for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we have
known them. They are not mentioned in the Constitution or in the Bill of Rights. These
unwritten amenities have been, in part, responsible for giving our people the feeling of
independence and self-confidence, the feeling of creativity. These amenities have dignified
the right of dissent, and have honored the right to be nonconformists and the right to defy
submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating
silence.
xxxx
Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those
convicted may be punished for no more than vindicating affronts to police authority:
"The common ground which brings such a motley assortment of human troubles before the
magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction'
for almost any kind of conduct and the existence of the House of Correction as an easy and
convenient dumping-ground for problems that appear to have no other immediate solution."
Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 631.
xxxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack of
notice given a potential offender, but on the effect of the unfettered discretion it places in
the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called
the vagrancy-type law as offering "punishment by analogy." Such crimes, though long
common in Russia, are not compatible with our constitutional system.
xxxx
A presumption that people who might walk or loaf or loiter or stroll or frequent houses
where liquor is sold, or who are supported by their wives or who look suspicious to the police
are to become future criminals is too precarious for a rule of law. The implicit presumption in
these generalized vagrancy standards -- that crime is being nipped in the bud -- is too
extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the
police. Of course, they are nets making easy the roundup of so-called undesirables. But the
rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville
type teach that the scales of justice are so tipped that even-handed administration of the law
is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor
as well as the rich, is the great mucilage that holds society together.21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance
"fails to give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute;" and 2) it encourages or promotes opportunities for the application
of discriminatory law enforcement.
The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202
(2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no
application here because under our legal system, ignorance of the law excuses no one from
compliance therewith.22 This principle is of Spanish origin, and we adopted it to govern and
limit legal conduct in this jurisdiction. Under American law, ignorance of the law is merely a
traditional rule that admits of exceptions.23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific
provisions thereof, which are not found in Article 202 (2). The ordinance (Jacksonville
Ordinance Code § 257) provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common gamblers,
persons who use juggling or unlawful games or plays, common drunkards, common night
walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and
lascivious persons, keepers of gambling places, common railers and brawlers, persons
wandering or strolling around from place to place without any lawful purpose or object,
habitual loafers, disorderly persons, persons neglecting all lawful business and habitually
spending their time by frequenting houses of ill fame, gaming houses, or places where
alcoholic beverages are sold or served, persons able to work but habitually living upon the
earnings of their wives or minor children shall be deemed vagrants and, upon conviction in
the Municipal Court shall be punished as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional,
because such activities or habits as nightwalking, wandering or strolling around without any
lawful purpose or object, habitual loafing, habitual spending of time at places where
alcoholic beverages are sold or served, and living upon the earnings of wives or minor
children, which are otherwise common and normal, were declared illegal. But these are
specific acts or activities not found in Article 202 (2). The closest to Article 202 (2) – "any
person found loitering about public or semi-public buildings or places, or tramping or
wandering about the country or the streets without visible means of support" – from the
Jacksonville ordinance, would be "persons wandering or strolling around from place to place
without any lawful purpose or object." But these two acts are still not the same: Article 202
(2) is qualified by "without visible means of support" while the Jacksonville ordinance
prohibits wandering or strolling "without any lawful purpose or object," which was held by
the U.S. Supreme Court to constitute a "trap for innocent acts."
Under the Constitution, the people are guaranteed the right to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose, 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.24 Thus, as with
any other act or offense, the requirement of probable cause provides an acceptable limit on
police or executive authority that may otherwise be abused in relation to the search or arrest
of persons found to be violating Article 202 (2). The fear exhibited by the respondents,
echoing Jacksonville, that unfettered discretion is placed in the hands of the police to make
an arrest or search, is therefore assuaged by the constitutional requirement of probable
cause, which is one less than certainty or proof, but more than suspicion or possibility.25
Evidently, the requirement of probable cause cannot be done away with arbitrarily without
pain of punishment, for, absent this requirement, the authorities are necessarily guilty of
abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith
of the peace officers making the arrest.26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into
their houses, papers and effects. The constitutional provision sheathes the private individual
with an impenetrable armor against unreasonable searches and seizures. It protects the
privacy and sanctity of the person himself against unlawful arrests and other forms of
restraint, and prevents him from being irreversibly cut off from that domestic security which
renders the lives of the most unhappy in some measure agreeable.27
As applied to the instant case, it appears that the police authorities have been conducting
previous surveillance operations on respondents prior to their arrest. On the surface, this
satisfies the probable cause requirement under our Constitution. For this reason, we are not
moved by respondents’ trepidation that Article 202 (2) could have been a source of police
abuse in their case.
Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the
constitutionality of Article 202 except now. Instead, throughout the years, we have
witnessed the streets and parks become dangerous and unsafe, a haven for beggars,
harassing "watch-your-car" boys, petty thieves and robbers, pickpockets, swindlers, gangs,
prostitutes, and individuals performing acts that go beyond decency and morality, if not basic
humanity. The streets and parks have become the training ground for petty offenders who
graduate into hardened and battle-scarred criminals. Everyday, the news is rife with reports
of innocent and hardworking people being robbed, swindled, harassed or mauled – if not
killed – by the scourge of the streets. Blue collar workers are robbed straight from
withdrawing hard-earned money from the ATMs (automated teller machines); students are
held up for having to use and thus exhibit publicly their mobile phones; frail and helpless
men are mauled by thrill-seeking gangs; innocent passers-by are stabbed to death by rowdy
drunken men walking the streets; fair-looking or pretty women are stalked and harassed, if
not abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case streets
and parks for possible victims; the old are swindled of their life savings by conniving
streetsmart bilkers and con artists on the prowl; beggars endlessly pester and panhandle
pedestrians and commuters, posing a health threat and putting law-abiding drivers and
citizens at risk of running them over. All these happen on the streets and in public places, day
or night.
The streets must be protected. Our people should never dread having to ply them each day,
or else we can never say that we have performed our task to our brothers and sisters. We
must rid the streets of the scourge of humanity, and restore order, peace, civility, decency
and morality in them.
This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws
were crafted to maintain minimum standards of decency, morality and civility in human
society. These laws may be traced all the way back to ancient times, and today, they have
also come to be associated with the struggle to improve the citizens’ quality of life, which is
guaranteed by our Constitution.28 Civilly, they are covered by the "abuse of rights" doctrine
embodied in the preliminary articles of the Civil Code concerning Human Relations, to the
end, in part, that any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.29 This provision is, together with the succeeding articles on human relations,
intended to embody certain basic principles "that are to be observed for the rightful
relationship between human beings and for the stability of the social order."30
In civil law, for example, the summary remedy of ejectment is intended to prevent criminal
disorder and breaches of the peace and to discourage those who, believing themselves
entitled to the possession of the property, resort to force rather than to some appropriate
action in court to assert their claims.31 Any private person may abate a public nuisance which
is specially injurious to him by removing, or if necessary, by destroying the thing which
constitutes the same, without committing a breach of the peace, or doing unnecessary
injury.32
Criminally, public order laws encompass a whole range of acts – from public indecencies and
immoralities, to public nuisances, to disorderly conduct. The acts punished are made illegal
by their offensiveness to society’s basic sensibilities and their adverse effect on the quality of
life of the people of society. For example, the issuance or making of a bouncing check is
deemed a public nuisance, a crime against public order that must be abated.33 As a matter of
public policy, the failure to turn over the proceeds of the sale of the goods covered by a trust
receipt or to return said goods, if not sold, is a public nuisance to be abated by the imposition
of penal sanctions.34 Thus, public nuisances must be abated because they have the effect of
interfering with the comfortable enjoyment of life or property by members of a community.
Article 202 (2) does not violate the equal protection clause; neither does it discriminate
against the poor and the unemployed. Offenders of public order laws are punished not for
their status, as for being poor or unemployed, but for conducting themselves under such
circumstances as to endanger the public peace or cause alarm and apprehension in the
community. Being poor or unemployed is not a license or a justification to act indecently or
to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a
public order crime which punishes persons for conducting themselves, at a certain place and
time which orderly society finds unusual, under such conditions that are repugnant and
outrageous to the common standards and norms of decency and morality in a just, civilized
and ordered society, as would engender a justifiable concern for the safety and well-being of
members of the community.
It must not be forgotten that police power is an inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the Constitution, as they shall judge to be for the
good and welfare of the commonwealth, and for the subjects of the same. The power is
plenary and its scope is vast and pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general welfare.38 As an obvious police power
measure, Article 202 (2) must therefore be viewed in a constitutional light.
WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court
of Davao City in Special Civil Case No. 30-500-2004 declaring Article 202, paragraph 2 of the
Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET ASIDE.
Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus
continue.
No costs.
SO ORDERED.

Instead of taking an active position declaring public order laws unconstitutional, the State
should train its eye on their effective implementation, because it is in this area that the Court
perceives difficulties. Red light districts abound, gangs work the streets in the wee hours of
the morning, dangerous robbers and thieves ply their trade in the trains stations, drunken
men terrorize law-abiding citizens late at night and urinate on otherwise decent corners of
our streets. Rugby-sniffing individuals crowd our national parks and busy intersections.
Prostitutes wait for customers by the roadside all around the metropolis, some even venture
in bars and restaurants. Drug-crazed men loiter around dark avenues waiting to pounce on
helpless citizens. Dangerous groups wander around, casing homes and establishments for
their next hit. The streets must be made safe once more. Though a man’s house is his
castle,35 outside on the streets, the king is fair game.

The dangerous streets must surrender to orderly society.

Finally, we agree with the position of the State that first and foremost, Article 202 (2) should
be presumed valid and constitutional. When confronted with a constitutional question, it is
elementary that every court must approach it with grave care and considerable caution
bearing in mind that every statute is presumed valid and every reasonable doubt should be
resolved in favor of its constitutionality.36 The policy of our courts is to avoid ruling on
constitutional questions and to presume that the acts of the political departments are valid
in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain,
this presumption is based on the doctrine of separation of powers which enjoins upon each
department a becoming respect for the acts of the other departments. The theory is that as
the joint act of Congress and the President of the Philippines, a law has been carefully
studied, crafted and determined to be in accordance with the fundamental law before it was
finally enacted.37
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of
the rights of the individual from the vast powers of the State and the inroads of societal
pressure. But even as he draws a sacrosanct line demarcating the limits on individuality
beyond which the State cannot tread - asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social interference - he veritably acknowledges
that the exercise of rights and liberties is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who would endeavor to withhold fulfillment.
Thus he says -
The sole end for which mankind is warranted, individually or collectively, in interfering with
the liberty of action of any of their number, is self-protection. The only purpose for which
power can be rightfully exercised over any member of a civilized community, against his will,
is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-
preservation. With the end of maintaining the integrity and cohesiveness of the body politic,
it behooves the State to formulate a system of laws that would compel obeisance to its
collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought
changes in the social order, carrying with it a new formulation of fundamental rights and
duties more attuned to the imperatives of contemporary socio-political ideologies. In the
process, the web of rights and State impositions became tangled and obscured, enmeshed in
threads of multiple shades and colors, the skein irregular and broken. Antagonism, often
outright collision, between the law as the expression of the will of the State, and the zealous
attempts by its members to preserve their individuality and dignity, inevitably followed. It is
when individual rights are pitted against State authority that judicial conscience is put to its
severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA
7080 (An Act Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2
wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that
thin but distinct line which divides the valid from the constitutionally infirm. He therefore
makes a stringent call for this Court to subject the Plunder Law to the crucible of
constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness;
(b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it
abolishes the element of mens rea in crimes already punishable under The Revised Penal
Code, all of which are purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or
material possession of any person within the purview of Section Two (2) hereof, acquired by
him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds
or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or
in connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described in Section 1 (d) hereof,
in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code shall be considered by the
court. The court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient
to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8)
separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as
amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3,
par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices
Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The
Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No.
26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for
Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the
Ombudsman for preliminary investigation with respect to specification "d" of the charges in
the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of probable cause.
Noticeably, the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause.
The purported ambiguity of the charges and the vagueness of the law under which they are
charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No.
26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance
of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the
ground that the facts alleged therein did not constitute an indictable offense since the law on
which it was based was unconstitutional for vagueness, and that the Amended Information
for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its
Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner
submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's
Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the
issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is
unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the accused to due process;
and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it
is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is
predicated on the basic principle that a legislative measure is presumed to be in harmony
with the Constitution.3 Courts invariably train their sights on this fundamental rule whenever
a legislative act is under a constitutional attack, for it is the postulate of constitutional
adjudication. This strong predilection for constitutionality takes its bearings on the idea that
it is forbidden for one branch of the government to encroach upon the duties and powers of
another. Thus it has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must
assume that the legislature is ever conscious of the borders and edges of its plenary powers,
and has passed the law with full knowledge of the facts and for the purpose of promoting
what is right and advancing the welfare of the majority. Hence in determining whether the
acts of the legislature are in tune with the fundamental law, courts should proceed with
judicial restraint and act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must first ascertain whether
an interpretation is fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis
for the decision of the court, the constitutionality of the challenged law will not be touched
and the case will be decided on other available grounds. Yet the force of the presumption is
not sufficient to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses the hallowed
domain of the organic law, it must be struck down on sight lest the positive commands of the
fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging
the validity of the statute. He must demonstrate beyond any tinge of doubt that there is
indeed an infringement of the constitution, for absent such a showing, there can be no
finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put
by Justice Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption of constitutionality of
the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined
parameters which would enable the accused to determine the nature of his violation. Section
2 is sufficiently explicit in its description of the acts, conduct and conditions required or
forbidden, and prescribes the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;
 2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any
person and/or entity in connection with any government contract or project or by
reason of the office or position of the public officer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise or
undertaking; (e) by establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who
are subject to it what conduct would render them liable to its penalties, its validity will be
sustained. It must sufficiently guide the judge in its application; the counsel, in defending one
charged with its violation; and more importantly, the accused, in identifying the realm of the
proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed
statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of
at least ₱50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par.
(d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law, indicating with
reasonable certainty the various elements of the offense which petitioner is alleged to have
committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the
Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with
Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro,
JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No.
7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with
his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR
criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION
PESOS (₱545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE
FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG'
ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES
AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY
OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), more or less,
representing a portion of the TWO HUNDRED MILLION PESOS (₱200,000,000.00)
tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
AND OTHER JOHN DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT,
the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000
SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN
THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION
NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY
FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS (₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND
BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'
 (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS
THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(₱3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME
'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none -
that will confuse petitioner in his defense. Although subject to proof, these factual assertions
clearly show that the elements of the crime are easily understood and provide adequate
contrast between the innocent and the prohibited acts. Upon such unequivocal assertions,
petitioner is completely informed of the accusations against him as to enable him to prepare
for an intelligent defense.
That Congress intended the words "combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative deliberations on the bill which
eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of
REP. ISIDRO: Series.
the terms "combination" and "series" in the key phrase "a combination or series of overt or
criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These
omissions, according to petitioner, render the Plunder Law unconstitutional for being REP. GARCIA: Yeah, we include series.
impermissibly vague and overbroad and deny him the right to be informed of the nature and
cause of the accusation against him, hence, violative of his fundamental right to due process. REP. ISIDRO: But we say we begin with a combination.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and REP. GARCIA: Yes.
void merely because general terms are used therein, or because of the employment of terms
without defining them;6 much less do we have to define every word we use. Besides, there is REP. ISIDRO: When we say combination, it seems that -
no positive constitutional or statutory command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in the form of expression of its will,
and its inability to so define the words employed in a statute will not necessarily result in the REP. GARCIA: Two.
vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be
gathered from the whole act, which is distinctly expressed in the Plunder Law. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice
of one enumeration.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary acceptation and signification,7 unless it is REP. GARCIA: No, no, not twice.
evident that the legislature intended a technical or special legal meaning to those words.8
The intention of the lawmakers - who are, ordinarily, untrained philologists and REP. ISIDRO: Not twice?
lexicographers - to use statutory phraseology in such a manner is always presumed. Thus,
Webster's New Collegiate Dictionary contains the following commonly accepted definition of
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
the words "combination" and "series:"

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different
Combination - the result or product of combining; the act or process of combining. To
acts. It cannot be a repetition of the same act.
combine is to bring into such close relationship as to obscure individual characters.

REP. GARCIA: That be referred to series, yeah.

Series - a number of things or events of the same class coming one after another in spatial
and temporal succession.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series,
we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a
very good suggestion because if it is only one act, it may fall under ordinary crime but we
have here a combination or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even
"two" acts may already result in such a big amount, on line 25, would the Sponsor consider
deleting the words "a series of overt or," to read, therefore: "or conspiracy COMMITTED by
criminal acts such as." Remove the idea of necessitating "a series." Anyway, the criminal acts
are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in
this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime.
But when we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts
falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on
the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal
acts falling under the same category of enumeration found in Sec. 1, par. (d), say,
misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1,
par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in specifically providing for it in
the law.
As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is
sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of
overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to
Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose
or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth.
And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful scheme' indicates a
'general plan of action or method' which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is
no such overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and
sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance
on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been
formulated in various ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited by the statute. It
can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that
which cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.10 But the doctrine
does not apply as against legislations that are merely couched in imprecise language but
which nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be mounted as against the second
whenever directed against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice.12 It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds
of the statute are clearly delineated. An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its provisions, especially where,
because of the nature of the act, it would be impossible to provide all the details in advance
as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V.
Mendoza during the deliberations of the Court that the allegations that the Plunder Law is
vague and overbroad do not justify a facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential of due process of
law."13 The overbreadth doctrine, on the other hand, decrees that "a governmental purpose
may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as
a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow specificity."15
The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem
effect resulting from their very existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against socially harmful conduct.
In the area of criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put
it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment."16 In Broadrick v. Oklahoma,17
the Court ruled that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid."18 As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of the
law as applied to the conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one
to whom application of a statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."20 As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process typically
are invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected.22 It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out in
Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, .
. . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort,"25 and is generally
disfavored.26 In determining the constitutionality of a statute, therefore, its provisions which
are alleged to have been violated in a case must be examined in the light of the conduct with
which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder
Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real.
Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute
to furnish support to critics who cavil at the want of scientific precision in the law. Every
provision of the law should be construed in relation and with reference to every other part.
To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance
of what the Plunder Law is all about. Being one of the Senators who voted for its passage,
petitioner must be aware that the law was extensively deliberated upon by the Senate and
its appropriate committees by reason of which he even registered his affirmative vote with
full knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and
emphasize the point that courts are loathed to declare a statute void for uncertainty unless
the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case, petitioners Gallego and
Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act for being vague. Petitioners posited, among others, that the term
"unwarranted" is highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par.
(e), violates due process in that it does not give fair warning or sufficient notice of what it
seeks to penalize. Petitioners further argued that the Information charged them with three
(3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality;
(b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in the discharge of their
official function and that their right to be informed of the nature and cause of the accusation
against them was violated because they were left to guess which of the three (3) offenses, if
not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness. The phrases
"manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute
may be committed, and the use of all these phrases in the same Information does not mean
that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official support;
unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without
justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D.
Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice
and make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is
the act of a public officer, in the discharge of his official, administrative or judicial functions,
in giving any private party benefits, advantage or preference which is unjustified,
unauthorized or without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the
term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was
understood in its primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the
Plunder Law circumvents the immutable obligation of the prosecution to prove beyond
reasonable doubt the predicate acts constituting the crime of plunder when it requires only
proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal
prosecution for plunder, as in all other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is
indispensable to command the respect and confidence of the community in the application
of criminal law. It is critical that the moral force of criminal law be not diluted by a standard
of proof that leaves people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary affairs has
confidence that his government cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt"
standard has acquired such exalted stature in the realm of constitutional law as it gives life to
the Due Process Clause which protects the accused against conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the crime with which he is
charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on
this score during the deliberations in the floor of the House of Representatives are
elucidating -
 DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged
in the information must be proven beyond reasonable doubt. If we will prove only one act and
find him guilty of the other acts enumerated in the information, does that not work against
the right of the accused especially so if the amount committed, say, by falsification is less
than ₱100 million, but the totality of the crime committed is ₱100 million since there is
malversation, bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved
beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every
element of the crime charged. For example, Mr. Speaker, there is an enumeration of the
things taken by the robber in the information – three pairs of pants, pieces of jewelry. These
need not be proved beyond reasonable doubt, but these will not prevent the conviction of a
crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the
prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder
the totality of the amount is very important, I feel that such a series of overt criminal acts has
to be taken singly. For instance, in the act of bribery, he was able to accumulate only ₱50,000
and in the crime of extortion, he was only able to accumulate ₱1 million. Now, when we add
the totality of the other acts as required under this bill through the interpretation on the rule
of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of
the crime, there is a need to prove that element beyond reasonable doubt. For example, one
essential element of the crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total amount would be ₱110
or ₱120 million, but there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the amount involved in
these transactions, proved beyond reasonable doubt, is ₱100 million, then there is a crime of
plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the
standard quantum of proof in the crime of plunder. The burden still remains with the
prosecution to prove beyond any iota of doubt every fact or element necessary to constitute
the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime
suffers from a dismal misconception of the import of that provision. What the prosecution
needs to prove beyond reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and every other act alleged in the
Information to have been committed by the accused in furtherance of the overall unlawful
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with having committed
fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50)
raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable
doubt provided only that they amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in
the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such
pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate
acts. This conclusion is consistent with reason and common sense. There would be no other
explanation for a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to
amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to
make a deliberate and conscious effort to prove pattern as it necessarily follows with the
establishment of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that
"pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two
pronged, (as) it contains a rule of evidence and a substantive element of the crime," such
that without it the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt
of the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the
Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond
reasonable doubt without applying Section 4, can you not have a conviction under the
Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element
of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof
beyond reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of
evidence and it contains a substantive element of the crime of plunder. So, there is no way by
which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate
crimes charged are concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element
of the crime of plunder and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can
be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and
"pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear
and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal
case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any
substantive right in favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4,
a conviction for plunder may be had, for what is crucial for the prosecution is to present
sufficient evidence to engender that moral certitude exacted by the fundamental law to
prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of
argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may
simply be severed from the rest of the provisions without necessarily resulting in the demise
of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to
any person or circumstance is held invalid, the remaining provisions of this Act and the
application of such provisions to other persons or circumstances shall not be affected
thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as
a result of the nullity of some of its provisions, assuming that to be the case although it is not
really so, all the provisions thereof should accordingly be treated independently of each
other, especially if by doing so, the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se
which requires proof of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must
be proven in a prosecution for plunder. It is noteworthy that the amended information
alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus
alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that
is the reason he claims the statute is void, petitioner cites the following remarks of Senator
Tañada made during the deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence sufficient to establish
the conspiracy or scheme to commit this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the
transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4,
Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster
process of attending to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal act done to further the scheme or
conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal
acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element
of plunder since the degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the said public officer in
the commission of an offense contributing to the crime of plunder." There is no reason to
believe, however, that it does not apply as well to the public officer as principal in the crime.
As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws
with what they omit, but there is no canon against using common sense in construing laws as
saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to
have been resolved in the affirmative by the decision of Congress in 1993 to include it among
the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of
heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal course of his or her growth as a
human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes; as well as
murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the
victim is detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape
or intentional mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications
of the subject criminal acts in the scheme of the larger socio-political and economic context
in which the state finds itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and syndicated
criminality that so deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson resulting in death, and
drug offenses involving government officials, employees or officers, that their perpetrators
must not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is
a malum in se. For when the acts punished are inherently immoral or inherently wrong, they
are mala in se37 and it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are mere prosecutions for
violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080,
on constitutional grounds. Suffice it to say however that it is now too late in the day for him
to resurrect this long dead issue, the same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history. The declaration of this Court therein
that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by
necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in
high places which have shaken its very foundation. The anatomy of graft and corruption has
become more elaborate in the corridors of time as unscrupulous people relentlessly contrive
more and more ingenious ways to bilk the coffers of the government. Drastic and radical
measures are imperative to fight the increasingly sophisticated, extraordinarily methodical
and economically catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale corruption which, if
left unchecked, will spread like a malignant tumor and ultimately consume the moral and
institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of
the legislature to ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few issues of
national importance can equal the amount of interest and passion generated by petitioner's
ignominious fall from the highest office, and his eventual prosecution and trial under a
virginal statute. This continuing saga has driven a wedge of dissension among our people that
may linger for a long time. Only by responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law,
as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
DISSENTING OPINION
KAPUNAN, J.:
The primary duty of the Court is to render justice. The resolution of the issues brought before
it must be grounded on law, justice and the basic tenets of due process, unswayed by the
passions of the day or the clamor of the multitudes, guided only by its members’ honest
conscience, clean hearts and their unsullied conviction to do what is right under the law.
The issues posed by the instant petition are quite difficult. The task of the Court to resolve
the same is made more daunting because the case involves a former President of the
Republic who, in the eyes of certain sectors of society, deserves to be punished. But the
mandate of the Court is to decide these issues solely on the basis of law and due process, and
regardless of the personalities involved. For indeed, the rule of law and the right to due
process are immutable principles that should apply to all, even to those we hate. As Fr.
Joaquin G. Bernas, S.J., a noted constitutionalist, aptly puts it--
x x x the greater disaster would be if the Supreme Court should heed the clamor for
conviction and convict Estrada even under an unconstitutional law but of the belief that
Estrada deserves to be punished. That would be tantamount to a rule of men and not of law.1
The Basic Facts
The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080
or Plunder Law), as amended by Republic Act No. 7659,2 entitled "An Act Defining and
Penalizing the Crime of Plunder."3 This original petition for certiorari and prohibition against
Respondent Third Division of the Sandiganbayan filed by petitioner Joseph Ejercito Estrada
assails Respondent court’s Resolution, dated July 9, 2001, denying his Motion to Quash the
information against him in Criminal Case No. 26558 for Plunder. Petitioner likewise prays that
the Sandiganbayan be prohibited and enjoined from proceeding with his arraignment and
trial in Criminal Case No. 26558 due to the unconstitutionality of R. A. No. 7080.
On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs.
Desierto, et al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on
April 3, 2001, upholding the constitutionality of President Gloria Macapagal-Arroyo’s
assumption of office as President of the Republic of the Philippines and declaring that the
former President Joseph Ejercito Estrada no longer enjoyed immunity from suit, the
Ombudsman filed eight (8) Informations against Estrada. These cases were Criminal Case No.
26558 (for Plunder); Criminal Case No. 26559 (for Violation of Sec. 3[a] of Republic Act No.
3019); Criminal Case No. 26560 (for Violation of Sec. 3[a] of R.A. No. 3019); Criminal Case No.
26561 (for Violation of Sec. 3[e] of R.A. 3019); Criminal Case No. 26562 (for Violation of Sec.
3[e] of R.A. No. 3019); Criminal Case No. 26563 (for Violation of Sec. 7[d] of R.A. No. 6713);
Criminal Case No. 26564 (for Perjury); and Criminal Case No. 26565 (for Illegal Use of Alias).
The aforementioned informations were raffled to the five divisions of the Sandiganbayan.
Criminal Case No. 26558 was raffled to the Third Division of said court. The amended
information against petitioner charging violations of Section 2, in relation to Section (d) (1)
(2) of the statute reads:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, by himself and in
conspiracy with his co-accused, business associates and persons heretofore named, by taking
advantage of his official position, authority, connection or influence as President of the
Republic of the Philippines, did then and there wilfully, unlawfully and criminally amass,
accumulate and acquire ill-gotten wealth, and unjustly enrich himself in the aggregate
amount of P4,097,804,173.17, more or less, through a combination and series of overt and
criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many instances, so-called
"jueteng money" from gambling operators in connivance with co-accused Jose
‘Jinggoy’ Estrada, Yolanda T. Ricaforte and Edward Serapio, as witnessed by Gov.
Luis ‘Chavit’ Singson, among other witnesses, in the aggregate amount of FIVE
HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in
consideration of their protection from arrest or interference by law enforcers in
their illegal "jueteng" activities; and
(b) by misappropriating, converting and misusing for his gain and benefit public
fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00),
more or less, representing a portion of One Hundred Seventy Million Pesos
(P170,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur
under R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma
Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses; and
(c) by directing, ordering and compelling the Government Service Insurance System
(GSIS) and the Social Security System (SSS) to purchase and buy a combined total of
681,733,000 shares of stock of the Belle Corporation in the aggregate gross value of
One Billion Eight Hundred Forty-Seven Million Five Hundred Seventy Eight
Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose of
collecting for his personal gain and benefit, as in fact he did collect and receive the
sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND FIFTY
SEVEN PESOS (P189,700,000.00) as commission for said stock purchase; and
(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his
unexplained wealth acquired, accumulated and amassed by him under his account
name "Jose Velarde" with Equitable PCI Bank:
to the damage and prejudice of the Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.4
On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw
Information in Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563. Petitioner
registered his objection to the Ombudsman’s motion to withdraw. The divisions of the
Sandiganbayan to which said cases were assigned granted the withdrawal of the
informations, save for that in Criminal Case No. 26561. At present, the Order of the First
Division of the Sandiganbayan denying the Ombudsman’s motion to withdraw in Criminal
Case No. 26561 is still under reconsideration.
In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the
remand of the case to the Office of the Ombudsman for: (1) the conduct of a preliminary
investigation as regards specification "d" of the accusations in the information in said case;
and (2) reconsideration/reinvestigation of the offenses in specifications "a," "b" and "c" to
enable petitioner to file his counter-affidavits as well as other necessary documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of
accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie
"Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan
or Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution
denying petitioner’s Omnibus Motion.
On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the
same was denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal
Case No. 26558, invoking the following grounds: (1) the facts charged do not constitute an
indictable offense as R.A. No. 7080, the statute on which it is based, is unconstitutional; and
(2) the information charges more than one offense.
The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed
his Reply to the Opposition on June 28, 2001.
On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying
petitioner’s motion to quash.
Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the
Sandiganbayan committed grave abuse of discretion in denying his motion to quash the
information in Criminal Case No. 26558. Petitioner argues that R.A. No. 7080 is
unconstitutional on the following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE
NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE BY LOWERING THE QUANTUM OF EVIDENCE
NECESSARY FOR PROVING THE COMPONENT ELEMENTS OF PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT
THE REASONABLE DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS
REA IN MALA IN SE CRIMES BY CONVERTING THESE TO MALA PROHIBITA, IN
VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY.5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section 1(d)
hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.
Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court. The court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No. 7659.)
Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business
enterprise or material possession of any person within the purview of Section Two (2)"
hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates, and/or business associates by any combination or series of the following
means or similar schemes:
1. Through misappropriation, conversion, misuse or malversation of public funds or
raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
 5. By establishing agricultural, industrial or commercial monopolies or other
combination and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
6. By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.6
On the other hand, Section 4 states:
Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
Petitioner’s theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from
structural deficiency and ambiguity.7 In sum, he maintains that the law does not afford an
ordinary person reasonable notice that his actuation will constitute a criminal offense. More
particularly, petitioner argues that the terms "combination" and "series" are not clearly
defined, citing that in a number of cases, the United States (U.S.) federal courts in deciding
cases under the Racketeer Influenced and Corrupt Organizations Act (RICO law), after which
the Plunder Law was patterned, have given different interpretations to "series of acts or
transactions."8 In addition, he terms "raid on the public treasury," "receiving or accepting a
gift," "commission," "kickbacks," "illegal or fraudulent conveyance or disposition of assets,"
"monopolies or other combinations," "special interests," "taking undue advantage of official
position," "unjustly enrich" all suffer from overbreadth which is a form of vagueness.9
In arguing that the law on plunder is vague and impermissibly broad, petitioner points out
that the terms "combination" and ‘series" used in the phrase "any combination or series of
the following means or similar schemes" are not defined under the statute. The use of these
terms in the law allegedly raises several questions as to their meaning and import.
Petitioner posits the following queries: "Does it (referring to the term "series") mean two,
three, four, of the overt or criminal acts listed in Section 1(d)? Would it mean two or more
related enterprises falling under at least two of the means or ‘similar schemes’ listed in the
law, or just a joint criminal enterprise? Would it require substantial identity of facts and
participants, or merely a common pattern of action? Would it imply close connection
between acts, or a direct relationship between the charges? Does the term mean a factual
relationship between acts or merely a common plan among conspirators?"10
The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear
from the law if said term covers time, place, manner of commission, or the principal
characters. Thus petitioner asks: "Does it (referring to the term "combination") include any
two or more acts, whether legal or illegal, or does the law require that the combination must
include at least two of the ‘means or similar schemes’ laid down in R.A. 7080? Does it cover
transactions that have occurred in the same place or area, or in different places, no matter
how far apart? Does ‘combination’ include any two or more overt acts, no matter how far
apart in time, or does it contemplate acts committed within a short period of time? Does
the ‘combination’ cover the modus operandi of the crimes, or merely the evidence to be
used at the trial?"11
It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall
scheme or conspiracy" adds to the vagueness of the law because "pattern" is not defined
therein and is not included in the definition of the crime of plunder even though it is an
essential element of said crime.12
Petitioner also maintains that the Plunder Law violates the due process clause and the
constitutional presumption of innocence by lowering the quantum of evidence necessary for
proving the component elements of plunder because Section 4 does not require that each
and every criminal act done by the accused in furtherance of the scheme or conspiracy be
proved, "it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."13
Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable
doubt standard and to abolish the element of mens rea in mala in se crimes by converting
these to mala prohibita, thereby making it easier for the prosecution to prove malversation,
bribery, estafa and other crimes committed by public officers since criminal intent need not
be established.14
Considering the infringement to the constitutionally-guaranteed right to due process of an
accused, petitioner contends that R.A. No. 7080 cannot be accorded any presumption of
constitutional validity.
Respondents’ theory
On the other hand, Respondents argue that the "particular elements constituting the crime
of plunder" are stated with "definiteness and certainty," as follows:
(1) There is a public officer who acts by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business associates, subordinates
or other persons;
(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;
(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at
least Fifty Million Pesos (P50,000,000.00); and
 (4) The ill-gotten wealth, which is defined as any asset, property, business
enterprise or material possession of any person within the purview of Section Two
(2) of R.A. No. 7080, was acquired by him directly or indirectly through dummies,
nominees, agents, subordinates, and/or business associates by any combination or
series of the means or similar schemes enumerated in Section 1(d).15
Moreover, Respondents maintain that assuming that there is some vagueness in the law, it
need not be declared unconstitutional but may be clarified by judicial construction.16
Respondents further add that the ordinary import of the terms combination" and "series"
should prevail, as can be gleaned from the deliberations of the Congress in the course of its
passage of the law. According to respondents, "series of overt criminal acts" simply mean a
repetition of at least two of any of those enumerated acts found in Section 1(d) of R.A. 7080.
And "combination" means a product of combining of at least one of any of those enumerated
acts described in Section 1(d) with at least one of any of the other acts so enumerated.
Respondents score petitioner for arguing on the basis of federal courts’ decisions on the
RICO law, citing that the U.S. courts have consistently rejected the contention that said law is
void for being vague.17
Respondents deny that the Plunder Law dispenses with the requirement of proof beyond
reasonable doubt. While there may be no necessity to prove each and every other act done
by the accused in furtherance of the scheme to acquire ill-gotten wealth, it is still necessary
for the prosecution to prove beyond reasonable doubt the pattern of overt or criminal acts
indicative of the overall scheme or conspiracy, as well as all the other elements of the
offense of plunder.18 Respondents also point out that conspiracy itself is not punishable
under the Plunder Law, which deals with conspiracy as a means of incurring criminal
liability.19
Respondents likewise contend that it is within the inherent powers and wisdom of the
legislature to determine which acts are mala prohibita in the same way that it can declare
punishable an act which is inherently not criminal in nature.20
In conclusion, Respondents assert that petitioner has failed to overcome the presumption of
constitutionality of R.A. No. 7080.
Petitioner’s Reply
Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision
states the "most important element, which is the common thread that ties the component
acts together: "a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy21 and raises the following questions:
(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or"
is used. Will a pattern of acts, which are overt but not criminal in themselves, be
indicative of an overall unlawful scheme or conspiracy?
(b) Under what specific facts or circumstances will a "pattern" be "indicative" of
the overall unlawful scheme or conspiracy?
(c) Under what specific facts or circumstances will the required "pattern" or
"scheme" even be said to be present or to exist?
(d) When is there an "unlawful scheme or conspiracy?"22
Issues raised in the oral arguments
Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the
issues for resolution as follows:
1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE
PREDICATE CRIMES OF PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE
ACCUSED TO DUE PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM
AND IF SO, WHETHER IT IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE
SAME.23
Thereafter, both parties filed their respective memoranda in which they discussed the points
which they raised in their earlier pleadings and during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of constitutionality,24 and the
presumption prevails in the absence of contrary evidence. 25 A criminal statute is generally
valid if it does not violate constitutional guarantees of individual rights. 26 Conversely, when a
constitutionally protected right of an individual is in danger of being trampled upon by a
criminal statute, such law must be struck down for being void.27
One of the fundamental requirements imposed by the Constitution upon criminal statutes is
that pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of
this requirement have been declared unconstitutional for being vague. This "void-for-
vagueness" doctrine is rooted in the basic concept of fairness as well as the due process
clause of the Constitution.
The Constitution guarantees both substantive and procedural due process28 as well as the
right of the accused to be informed of the nature and cause of the accusation against him.29
A criminal statute should not be so vague and uncertain that "men of common intelligence
must necessarily guess as to its meaning and differ as to its application.30
There are three distinct considerations for the vagueness doctrine. First, the doctrine is
designed to ensure that individuals are properly warned ex ante of the criminal
consequences of their conduct. This "fair notice" rationale was articulated in United States v.
Harriss:31
The constitutional requirement of definiteness is violated by a criminal statute that fails to
give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden
by the statute. The underlying principle is that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed.32
Second, and viewed as more important, the doctrine is intended to prevent arbitrary and
discriminatory law enforcement.33 Vague laws are invariably "standardless" and as such,
they afford too great an opportunity for criminal enforcement to be left to the unfettered
discretion of police officers and prosecutors.34 Third, vague laws fail to provide sufficient
guidance to judges who are charged with interpreting statutes. Where a statute is too vague
to provide sufficient guidance, the judiciary is arguably placed in the position of usurping the
proper function of the legislature by "making the law" rather than interpreting it. 35
While the dictum that laws be clear and definite does not require Congress to spell out with
mathematical certainty the standards to which an individual must conform his conduct,36 it is
necessary that statutes provide reasonable standards to guide prospective conduct.37 And
where a statute imposes criminal sanctions, the standard of certainty is higher.38 The
penalty imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua
to death.39 Given such penalty, the standard of clarity and definiteness required of R.A. No.
7080 is unarguably higher than that of other laws.40
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are not applicable to
penal laws."41 These two concepts, while related, are distinct from each other.42 On one
hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom of
speech.43 On the other hand, the "void-for-vagueness" doctrine applies to criminal laws, not
merely those that regulate speech or other fundamental constitutional rights.44 The fact that
a particular criminal statute does not infringe upon free speech does not mean that a facial
challenge to the statute on vagueness grounds cannot succeed.45
As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined
right to due process of law. Thus, as in this case that the "life, liberty and property" of
petitioner is involved, the Court should not hesitate to look into whether a criminal statute
has sufficiently complied with the elementary requirements of definiteness and clarity. It is
an erroneous argument that the Court cannot apply the vagueness doctrine to penal laws.
Such stance is tantamount to saying that no criminal law can be challenged however
repugnant it is to the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms to accomplish the
legislature’s objective of protecting the public from socially harmful conduct, this should not
prevent a vagueness challenge in cases where a penal statute is so indeterminate as to cause
the average person to guess at its meaning and application. For if a statute infringing upon
freedom of speech may be challenged for being vague because such right is considered as
fundamental, with more reason should a vagueness challenge with respect to a penal statute
be allowed since the latter involve deprivation of liberty, and even of life which, inarguably,
are rights as important as, if not more than, free speech.
It has been incorrectly suggested46 that petitioner cannot mount a "facial challenge" to the
Plunder Law, and that "facial" or "on its face" challenges seek the total invalidation of a
statute.47 Citing Broadrick v. Oklahoma,48 it is also opined that "claims of facial overbreadth
have been entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words" and that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct."
For this reason, it is argued further that "on its face invalidation of statutes has been
described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a last
resort.’" A reading of Broadrick, however, shows that the doctrine involved therein was the
doctrine of overbreadth. Its application to the present case is thus doubtful considering that
the thrust at hand is to determine whether the Plunder Law can survive the vagueness
challenge mounted by petitioner. A noted authority on constitutional law, Professor
Lockhart, explained that "the Court will resolve them (vagueness challenges) in ways
different from the approaches it has fashioned in the law of overbreadth." 49 Thus, in at least
two cases,50 the U.S. courts allowed the facial challenges to vague criminal statutes even if
these did not implicate free speech
In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal
statute which required persons who loiter or wander on the streets to provide a credible and
reasonable identification and to account for their presence when requested by a peace
officer under circumstances that would justify a valid stop. The U.S. Supreme Court held that
said statute was unconstitutionally vague on its face within the meaning of the due process
clause of the Fourteenth Amendment because it encourages arbitrary enforcement by failing
to clarify what is contemplated by the requirement that a suspect provide a "credible and
reasonable identification." Springfield vs. Oklahoma52 on the other hand involved a challenge
to a Columbus city ordinance banning certain assault weapons. The court therein stated that
a criminal statute may be facially invalid even if it has some conceivable application. It went
on to rule that the assailed ordinance’s definition of "assault weapon" was unconstitutionally
vague, because it was "fundamentally irrational and impossible to apply consistently by the
buying public, the sportsman, the law enforcement officer, the prosecutor or the judge." 53
It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of
the statute as applied to him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and
(2) of R.A. 7080 under which he is charged, but also its other provisions which deal with
plunder committed by illegal or fraudulent disposition of government assets (§1(d)(3)),
acquisition of interest in business (§1(d)(4)), and establishment of monopolies and
combinations or implementation of decrees intended to benefit particular persons or special
interests (§ 1(d)(5))."54 Notably, much of petitioner’s arguments dealt with the vagueness of
the key phrases "combination or series" and "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy" which go into the very nature of the crime for
which he is charged.
Taking into consideration that the Plunder Law is a penal statute that imposes the supreme
penalty of death, and that petitioner in this case clearly has standing to question its validity
inasmuch as he has been charged thereunder and that he has been for sometime now
painfully deprived of his liberty, it behooves this Court to address the challenge on the
validity of R.A. No. 7080.
Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in Section 2--
combination or series of overt or criminal acts as described in Section 1(d) hereof
and Section 1(d), which provides--
x x x by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury;
xxx
6) By taking undue advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.
as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth" and of "a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy," are clear enough that a person "of common
intelligence" need not guess at their meaning and differ as to their application.
The above raise several difficult questions of meaning which go to the very essence of the
offense, such as:
a. How many acts would constitute a "combination or series?"
b. Must the acts alleged to constitute the "combination or series" be similar in
nature? Note that Section 1(d) speaks of "similar schemes" while Section 4 speaks
of "the scheme" and of "a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy."
c. Must the "combination or series" of "overt or criminal acts" involving the
aggregate amount of at least P50 million be conceived as such a scheme or a
"pattern of overt or criminal acts" from inception by the accused?
d. What would constitute a "pattern"? What linkage must there be between and
among the acts to constitute a "pattern"? Need there be a linkage as to the
persons who conspire with one another, and a linkage as to all the acts between
and among them?
e. When Section 4 speaks of "indicative of the overall unlawful scheme or
conspiracy," would this mean that the "scheme" or "conspiracy" should have been
conceived or decided upon in its entirety, and by all of the participants?
f. When committed in connivance "with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other persons" or through
"dummies, nominees, agents, subordinates and/or business associates", would
such fact be part of the "pattern of overt or criminal acts" and of the "overall
unlawful scheme or conspiracy" such that all of those who are alleged to have
participated in the crime of plunder must have participated in each and every act
allegedly constituting the crime of plunder? And as in conspiracy, conspired
together from inception to commit the offense?
g. Within what time frame must the acts be committed so as to constitute a
"combination or series"?
I respectfully disagree with the majority that "ascertainable standards and well-defined
parameters" are provided in the law55 to resolve these basic questions.
Even men steeped in the knowledge of the law are in a quandary as to what constitutes
plunder. The Presiding Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted
that the justices of said court "have been quarrelling with each other in finding ways to
determine what [they] understand by plunder."56 Senator Neptali Gonzales also noted
during the deliberations of Senate Bill No. 733 that the definition of plunder under the law is
vague. He bluntly declared: "I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of the accusation of an
accused.57 Fr. Bernas, for his part, pointed to several problematical portions of the law that
were left unclarified. He posed the question: "How can you have a 'series' of criminal acts if
the elements that are supposed to constitute the series are not proved to be criminal?"58
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory definition of "combination" or "series", the majority is of
the view that resort can be had to the ordinary meaning of these terms. Thus, Webster's
Third New International Dictionary gives the meaning of "combination": "the result or
product or product of combining: a union or aggregate made of combining one thing with REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different
another."59 acts. It can not be a repetition of the same act.

In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
that at least two of the enumerated acts found in Section 1(d), i.e., one of any of the
enumerated acts, combined with another act falling under any other of the enumerated REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
means may constitute the crime of plunder. With respect to the term "series," the majority
states that it has been understood as pertaining to "two or more overt or criminal acts falling
THE CHAIRMAN (REP. GARCIA): A series.
under the same category"60 as gleaned from the deliberations on the law in the House of
Representatives and the Senate.
REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or
series, we seem to say that two or more, ‘di ba?
Further, the import of "combination" or "series" can be ascertained, the majority insists,61
from the following deliberations in the Bicameral Conference Committee on May 7, 1991:
THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes.
That is why, I said, that is a very good suggestion because if it is only one act, it may fall under
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
ordinary crime but we have here a combination or series of overt or criminal acts. So…
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are HON. ISIDRO: I know what you are talking about. For example, through misappropriation,
included, how about a series of the same act? For example, through misappropriation, conversion, misuse or malversation of public funds who raids the public treasury, now, for
conversion, misuse, will these be included also? example, misappropriation, if there are a series of misappropriations?

THE CHAIRMAN (REP. GARCIA): Yeah, because we say series. xxx

REP. ISIDRO: Series. THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…

THE CHAIRMAN (REP. GARCIA): Yeah, we include series. THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?

REP. ISIDRO: But we say we begin with a combination. THE CHAIRMAN (REP. GARCIA): Series, oo.

THE CHAIRMAN: (REP. GARCIA): Yes. REP. ISIDRO: Now, if it is combination, ano, two misappropriations…

REP. ISIDRO: When we say combination, it seems that- THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination.
Series.
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: So, it is not a combination?
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not
twice of one enumeration. THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN: (REP. GARCIA): No, no, not twice. REP. ISIDRO: When you say "combination", two different?

REP. ISIDRO: Not twice? THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts. THE CHAIRMAN (SEN. TAÑADA): Two different.

REP. ISIDRO: Two different acts.

THE CHAIRMAN (REP. GARCIA): For example, ha…
REP. ISIDRO: Now a series, meaning, repetition…62
The following deliberations in the Senate are pointed to by the majority63 to show that the
words "combination" and "series" are given their ordinary meaning:
Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two"
acts may already result in such a big amount, on line 25, would the Sponsor consider deleting
the words "a series of overt or". To read, therefore: "or conspiracy COMMITTED by criminal
acts such as". Remove the idea of necessitating "a series". Anyway, the criminal acts are in
the plural.
Senator Tañada. That would mean a combination of two or more of the acts mentioned in
this.
The President. Probably, two or more would be….
Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.
Senator Tañada. Accepted, Mr. President.
xxx
The President. If there is only one, then he has to be prosecuted under the particular crime.
But when we say ‘acts of plunder’ there should be, at least, two or more.
Senator Romulo. In other words, that is already covered by existing laws, Mr. President. 64
To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well
as recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080
failed to satisfy the strict requirements of the Constitution on clarity and definiteness. Note
that the key element to the crime of plunder is that the public officer, by himself or in
conspiracy with others, amasses, accumulates, or acquires "ill-gotten wealth" through a
"combination or series of overt or criminal acts" as described in Section 1(d) of the law.
Senator Gonzales, during the deliberations in the Senate, already raised serious concern over
the lack of a statutory definition of what constitutes "combination" or "series", consequently,
expressing his fears that Section 2 of R.A. No. 7080 might be violative of due process:
Senator Gonzales. To commit the offense of plunder, as defined in this Act and while
constituting a single offense, it must consist of a series of overt or criminal acts, such as
bribery, extortion, malversation of public funds, swindling, illegal exaction, and graft or
corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself
will be vague. I am afraid that it might be faulted for being violative of the due process clause
and the right to be informed of the nature and cause of accusation of an accused. Because,
what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a
series? During the period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by the number of
participants therein. In this particular case probably, we can statutorily provide for the
definition of "series" so that two, for example, would that be already a series? Or, three,
what would be the basis for such determination?65 (Emphasis supplied.)
The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s
observation that when penal laws enacted by Congress make reference to a term or concept
requiring a quantitative definition, these laws are so crafted as to specifically state the exact
number or percentage necessary to constitute the elements of a crime. To cite a few:
"Band" – "Whenever more than three armed malefactors shall have acted together in the
commission of an offense, it shall be deemed to have been committed by a band." (Article
14[6], Revised Penal Code)66
"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it." (Article 8, Revised Penal
Code)67
"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any unlawful or illegal transaction, enterprise
or scheme x x x." (Section 38, Labor Code)
"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group." (Section 38, Labor
Code)
"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of gain in the
commission of any crime." (Article 62 (1)(1a), Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate
consisting of five or more persons formed with the intention of carrying out the unlawful or
illegal act, transaction, enterprise or scheme x x x ." (Section 1, P.D. No. 1689)69
The deliberations of the Bicameral Conference Committee and of the Senate cited by the
majority, consisting mostly of unfinished sentences, offer very little help in clarifying the
nebulous concept of plunder. All that they indicate is that Congress seemingly intended to
hold liable for plunder a person who: (1) commits at least two counts of any one of the acts
mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits plunder by a
series of overt criminal acts; or (2) commits at least one count of at least two of the acts
mentioned in Section 1(d), in which case, such person commits plunder by a combination of
overt criminal acts. Said discussions hardly provide a window as to the exact nature of this
crime.
A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada THE CHAIRMAN (REP. GARCIA P.) Yes.
would imply that initially, combination was intended to mean "two or more means,"70 i.e.,
"number one and two or number one and something else x x x,"71 "two of the enumerated THE CHAIRMAN (SEN. TAÑADA) Two different.
means not twice of one enumeration,"72 "two different acts."73 Series would refer to "a
repetition of the same act."74 However, the distinction was again lost as can be gleaned from
REP. ISIDRO. Two different acts.
the following:

THE CHAIRMAN (REP. GARCIA P.) For example, ha…

THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.

REP. ISIDRO. Now a series, meaning, repetition…

REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different
acts. It can not be a repetition of the same act.
THE CHAIRMAN (SEN. TAÑADA) Yes.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
REP. ISIDRO. With that…
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA P.) Thank you.
THE CHAIRMAN (REP. GARCIA). A series.
THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in
paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts
REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or
mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or paragraph 4.
series, we seem to say that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I
said, that’s a very good suggestion, because if its’ only one act, it may fall under ordinary
crime. But we have here a combination or series, of overt or criminal acts" (Emphasis THE CHAIRMAN (SEN. TAÑADA) Series or combination.
supplied).75
REP. ISIDRO. Which one, combination or series or series or combination?
xxx
THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition,
THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di… doon sa portion ng… Saan iyon? As mentioned, as described…

THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"? THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…

THE CHAIRMAN (REP. GARCIA P) Series, oo. THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.

REP. ISIDRO. Now, if it is combination, ano, two misappropriations… THE CHAIRMAN (REP. GARCIA P.) Okay?

THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. REP. ISIDRO. Very good.
Series.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
REP. ISIDRO. So, it is not a combination?
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.
THE CHAIRMAN. (REP. GARCIA P.) Yes.
The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)
REP. ISIDRO. When we say "combination", two different?
The aforequoted deliberations, especially the latter part thereof, would show a dearth of
focus to render precise the definition of the terms. Phrases were uttered but were left
unfinished. The examples cited were not very definite. Unfortunately, the deliberations were
apparently adjourned without the Committee members themselves being clear on the
concept of series and combination.
Moreover, if "combination" as used in the law simply refers to the amassing, accumulation
and acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of
the means enumerated in Section 1(d), and "series," to at least two counts of one of the
modes under said section, the accused could be meted out the death penalty for acts which,
if taken separately, i.e., not considered as part of the combination or series, would ordinarily
result in the imposition of correctional penalties only. If such interpretation would be
adopted, the Plunder law would be so oppressive and arbitrary as to violate due process and
the constitutional guarantees against cruel or inhuman punishment.77 The penalty would be
blatantly disproportionate to the offense. Petitioner’s examples illustrate this absurdity:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with
prision correccional in its medium and maximum periods),
combined with -
one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal
Code with prision correccional in its medium period to prision mayor in its minimum period).
equals –
Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with
prision correccional in its minimum period or a fine ranging from P200 to P1,000 or both).
combined with –
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal
Code with prision correccional in its minimum or a fine ranging from P200 to P6,00, or both.
equals –
Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).
c. One act of possession of prohibited interest by a public officer (penalized with prision
correccional in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the
Revised Penal Code).
combined with –
one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the
Revised Penal Code with prision correccional in its minimum period, or a fine of P200 to
P1,000, or both),
equals –
plunder (punished by reclusion perpetua to death, and forfeiture of assets).78
The argument that higher penalties may be imposed where two or more distinct criminal acts
are combined and are regarded as special complex crimes, i.e., rape with homicide, does not
justify the imposition of the penalty of reclusion perpetua to death in case plunder is
committed. Taken singly, rape is punishable by reclusion perpetua;79 and homicide, by
reclusion temporal.80 Hence, the increase in the penalty imposed when these two are
considered together as a special complex crime is not too far from the penalties imposed for
each of the single offenses. In contrast, as shown by the examples above, there are instances
where the component crimes of plunder, if taken separately, would result in the imposition
of correctional penalties only; but when considered as forming part of a series or
combination of acts constituting plunder, could be punishable by reclusion perpetua to
death. The disproportionate increase in the penalty is certainly violative of substantive due
process and constitute a cruel and inhuman punishment.
It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has
reference to the acquisition of property (by the accused himself or in connivance with others)
"by any combination or series" of the "means" or "similar schemes" enumerated therein,
which include the following:
xxx
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other forms of interest or participation including the promise of future employment or any
business enterprise or undertakings;
5. By establishing agricultural, industrial or commercial monopolies or other combination
and/or implementation of decrees and orders intended to benefit particular persons or
special interests;
xxx
The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts.
They involve the exercise of the right to liberty and property guaranteed by Article III, Section
1 of the Constitution which provides that "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." Receiving or accepting any shares of stock is not per se objectionable. It is in
pursuance of civil liberty, which includes "the right of the citizen to be free to use his faculties
in all lawful ways; x x x to earn his livelihood by any lawful calling; to pursue any avocation,
and/or that purpose, to enter into all contracts which may be proper, necessary and essential
to his carrying out these purposes to a successful conclusion.81 Nor is there any impropriety,
immorality or illegality in establishing agricultural, industrial or commercial monopolies or
other combination and/or implementation of decrees and orders even if they are intended to
benefit particular persons or special interests. The phrases "particular persons" and "special
interests" may well refer to the poor,82 the indigenous cultural communities,83 labor,84
farmers,85 fisherfolk,86 women,87 or those connected with education, science and technology,
arts, culture and sports.88
In contrast, the monopolies and combinations described in Article 186 of the Revised Penal
Code are punishable because, as specifically defined therein, they are "on restraint of trade
or commerce or to prevent by artificial means of free competition in the market, or the
object is "to alter the price" of any merchandise "by spreading false rumors," or to
manipulate market prices in restraint of trade. There are no similar elements of monopolies
or combinations as described in the Plunder Law to make the acts wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or
more" acts, and "combination as defined in the Webster’s Third New International Dictionary
is "the result or product of combining one thing with another,"89 then, the commission of
two or more acts falling under paragraphs (4) and (5) of Section 1(d) would make innocent
acts protected by the Constitution as criminal, and punishable by reclusion perpetua to
death.
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically
mean the commission of two or more of the acts enumerated in Section 1(d), 90 still, this
interpretation does not cure the vagueness of R.A. No. 7080. In construing the definition of
"plunder," Section 2 of R.A. No. 7080 must not be read in isolation but rather, must be
interpreted in relation to the other provisions of said law. It is a basic rule of statutory
construction that to ascertain the meaning of a law, the same must be read in its entirety. 91
Section 1 taken in relation to Section 4 suggests that there is something to plunder beyond
simply the number of acts involved and that a grand scheme to amass, accumulate or acquire
ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2 pertain only to the
nature and quantitative means or acts by which a public officer, by himself or in connivance
with other persons, "amasses, accumulates or acquires ill-gotten wealth." Section 4, on the
other hand, requires the presence of elements other than those enumerated in Section 2 to
establish that the crime of plunder has been committed because it speaks of the necessity to
establish beyond reasonable doubt a "pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."
Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and
that this was acquired by any two or more of the acts described in Section 1(d); it is
necessary that these acts constitute a "combination or series" of acts done in furtherance of
"the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth", and which
constitute "a pattern of overt or criminal acts indicative of the overall scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident from a reading of the
assailed law in its entirety. It is that which would distinguish plunder from isolated criminal
acts punishable under the Revised Penal Code and other laws, for without the existence a
"pattern of overt or criminal acts indicative of the overall scheme or conspiracy" to acquire
ill-gotten wealth, a person committing several or even all of the acts enumerated in Section
1(d) cannot be convicted for plunder, but may be convicted only for the specific crimes
committed under the pertinent provisions of the Revised Penal Code or other laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of
procedure. It does not become such simply because its caption states that it is, although its
wording indicates otherwise. On the contrary, it is of substantive character because it spells
out a distinctive element of the crime which has to be established, i.e., an overall unlawful
"scheme or conspiracy" indicated by a "pattern of overt or criminal acts" or means or similar
schemes "to amass, accumulate or acquire ill-gotten wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy," however, escapes me. As in "combination" and "series,"
R.A. No. 7080 does not provide a definition of "pattern" as well as "overall unlawful scheme."
Reference to the legislative history of R.A. No. 7080 for guidance as to the meanings of these
concepts would be unavailing, since the records of the deliberations in Congress are silent as
to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly
inadequate. These words are defined as:
pattern: an arrangement or order of things or activity.92
scheme: design; project; plot.93
At most, what the use of these terms signifies is that while multiplicity of the acts (at least
two or more) is necessary, this is not sufficient to constitute plunder. As stated earlier,
without the element of "pattern" indicative of an "overall unlawful scheme," the acts merely
constitute isolated or disconnected criminal offenses punishable by the Revised Penal Code
or other special laws.
The commission of two or more of the acts falling under Section 1(d) is no guarantee that
they fall into a "pattern" or "any arrangement or order." It is not the number of acts but the
relationship that they bear to each other or to some external organizing principle that
renders them "ordered" or "arranged":
A pattern is an arrangement or order of things, or activity, and the mere fact that there are a
number of predicates is no guarantee that they fall into an arrangement or order. It is not the
number of predicates but the relationship that they bear to each other or to some external
organizing principle that renders them ‘ordered’ or ‘arranged.’ 94
In any event, it is hardly possible that two predicate acts can form a pattern:
The implication is that while two acts are necessary, they may not be sufficient. Indeed, in
common parlance, two of anything will not generally form a ‘pattern.’95
In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter referred to as
Northwestern), the U.S. Court reiterated the foregoing doctrine:
xxx Nor can we agree with those courts that have suggested that a pattern is established
merely by proving two predicate acts.97
Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or
criminal acts of the accused) meeting at a common center (the acquisition of ill-gotten
wealth) and with a rim (the overall unlawful scheme or conspiracy) of the wheel enclosing
the spokes, is off tangent. Their position that two spokes suffice to make a wheel, even
without regard to the relationship the spokes bear to each other clearly demonstrates the
absurdity of their view, for how can a wheel with only two spokes which are disjointed
function properly?
That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is
reasonably defined is precisely the point of the incisive concurring opinion of Justice Antonin
Scalia in Northwestern where he invited a constitutional challenge to the RICO law on "void-
for-vagueness" ground.98 The RICO law is a federal statute in the United States that provides
for both civil and criminal penalties for violation therefor. It incorporates by reference
twenty-four separate federal crimes and eight types of state felonies.99 One of the key
elements of a RICO violation is that the offender is engaged in a "pattern of racketeering
activity."100 The RICO law defines the phrase "pattern of racketeering activity" as requiring
"at least two acts of racketeering activity, one of which occurred after the effective date of 18
USCS § 1961, and within ten years (excluding any period of imprisonment) after the
commission of a prior act of racketeering activity."101 Incidentally, the Solicitor General claims
that R.A. No. 7080 is an entirely different law from the RICO law. The deliberations in
Congress reveal otherwise. As observed by Rep. Pablo Garcia, Chairman of the House of
Representatives Committee on Justice, R.A. No. 7080 was patterned after the RICO law.102
In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to
illuminate RICO’s key requirement of a pattern of racketeering," the U.S. Supreme Court,
through Justice William J. Brennan, Jr., undertook the task of developing a meaningful
concept of "pattern" within the existing statutory framework.103 Relying heavily on legislative
history, the US Supreme Court in that case construed "pattern" as requiring "continuity plus
relationship."104 The US Supreme Court formulated the "relationship requirement" in this
wise: "Criminal conduct forms a pattern if it embraces criminal acts that have the same or
similar purposes, results, participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated events."105 Continuity is
clarified as "both a closed and open-ended concept, referring either to a closed period of
repeated conduct, or to past conduct that by its nature projects into the future with a threat
of repetition."106
In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The
"talismanic phrase" of "continuity plus relationship" is, as put by Justice Scalia, about as
helpful as advising the courts that "life is a fountain." He writes:
x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering
activity" it is describing what is needful but not sufficient. (If that were not the case, the
concept of "pattern" would have been unnecessary, and the statute could simply have
attached liability to "multiple acts of racketeering activity"). But what that something more
is, is beyond me. As I have suggested, it is also beyond the Court. Today’s opinion has added
nothing to improve our prior guidance, which has created a kaleidoscope of Circuit positions,
except to clarify that RICO may in addition be violated when there is a "threat of continuity."
It seems to me this increases rather than removes the vagueness. There is no reason to
believe that the Court of Appeals will be any more unified in the future, than they have in the
past, regarding the content of this law.
That situation is bad enough with respect to any statute, but it is intolerable with respect to
RICO. For it is not only true, as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co.,
473 U.S. 479 x x x, that our interpretation of RICO has "quite simply revolutionize[d] private
litigation" and "validate[d] the federalization of broad areas of state common law of frauds,"
x x x so that clarity and predictability in RICO’s civil applications are particularly important;
but it is also true that RICO, since it has criminal applications as well, must, even in its civil
applications, possess the degree of certainty required for criminal laws x x x. No
constitutional challenge to this law has been raised in the present case, and so that issue is
not before us. That the highest court in the land has been unable to derive from this statute
anything more than today’s meager guidance bodes ill for the day when that challenge is
presented.107
It bears noting that in Northwestern the constitutionality of the RICO law was not
challenged.108 After Northwestern, the U.S. Supreme Court has so far declined the
opportunity to hear cases in which the void-for-vagueness challenge to the pattern
requirement was raised.109
Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)110 have
so far successfully survived constitutional challenge on void-for-vagueness ground. However,
it must be underscored that, unlike R.A. No. 7080, these state anti-racketeering laws have
invariably provided for a reasonably clear, comprehensive and understandable definition
of "pattern."111 For instance, in one state, the pattern requirement specifies that the related
predicate acts must have, among others, the same or similar purpose, result, principal,
victims or methods of commission and must be connected with "organized crime.112 In four
others, their pattern requirement provides that two or more predicate acts should be related
to the affairs of the enterprise, are not isolated, are not closely related to each other and
connected in point of time and place, and if they are too closely related, they will be treated
as a single act.113 In two other states, pattern requirements provide that if the acts are not
related to a common scheme, plan or purpose, a pattern may still exist if the participants
have the mental capacity required for the predicate acts and are associated with the criminal
enterprise.114
All the foregoing state statutes require that the predicate acts be related and that the acts
occur within a specified time frame.
Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit
courts in the United States. Their divergent conclusions have functioned effectively to create
variant criminal offenses.115 This confusion has come about notwithstanding that almost all
these state laws have respectively statutorily defined "pattern". In sharp contrast, R.A. No.
7080, as earlier pointed out, lacks such crucial definition. As to what constitutes pattern
within the meaning of R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and
judges. Neither the text of R.A. No. 7080 nor legislative history afford any guidance as to
what factors may be considered in order to prove beyond reasonable doubt "pattern of overt
or criminal acts indicative of the overall unlawful scheme or conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or
"pertaining to two or more" and "combination" is the "result or product or product of
combining." Whether two or more or at least three acts are involved, the majority would
interpret the phrase "combinations' or "series" only in terms of number of acts committed.
They entirely overlook or ignore Section 4 which requires "a pattern of overt of criminal acts
indicative of the overall unlawful scheme or conspiracy" to convict.
If the elements of the offense are as what the majority has suggested, the crime of plunder
could have been defined in the following manner:
Where a public official, by himself or in conspiracy with others, amasses or acquires money
or property by committing two or more acts in violation of Section 3 of the Anti-Graft and
Corrupt Practices Act (R.A. 3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the
Revised Penal Code, he shall be guilty of the crime of plunder and shall be punished by
reclusion perpetua to death.
The above would be a straightforward and objective definition of the crime of plunder.
However, this would render meaningless the core phrases "a combination or series of" "overt
or criminal acts indicative of the overall unlawful scheme or conspiracy," or the phrase "any
combination or series of the following means or similar schemes" or "a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."
But that obviously is not the definition of the crime of plunder under R.A. 7080. There is
something more. A careful reading of the law would unavoidably compel a conclusion that
there should be a connecting link among the "means or schemes" comprising a "series or
combination" for the purpose of acquiring or amassing "ill-gotten wealth." The bond or link is
an "overall unlawful scheme or conspiracy mentioned in Section 4. The law contemplates a
combination or series of criminal acts in plunder done by the accused "in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth." It does not
postulate acts committed randomly, separately or independently or sporadically.
Otherwise stated, if the legislature intended to define plunder as the acquisition of ill-gotten
wealth in the manner espoused by the majority, the use in R.A. 7080 of such words and
phrases as "combination" and "series of overt or criminal acts" xxx "in furtherance of the
scheme or conspiracy" is absolutely pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public
officer in the commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised Penal
Code, shall be considered by the court." Both parties share the view that the law as it is
worded makes it possible for a person who participates in the commission of only one of the
component crimes constituting plunder to be liable as co-conspirator for plunder, not merely
the component crime in which he participated.116 While petitioner concedes that it is easy to
ascertain the penalty for an accomplice or accessory under R.A. No. 7080, such is not the
case with respect to a co-principal of the accused.117 In other words, a person who conspires
with the accused in the commission of only one of the component crimes may be prosecuted
as co-principal for the component crime, or as co-principal for the crime of plunder,
depending on the interpretation of the prosecutor. The unfettered discretion effectively
bestowed on law enforcers by the aforequoted clause in determining the liability of the
participants in the commission of one or more of the component crimes of a charge for
plunder undeniably poses the danger of arbitrary enforcement of the law.118
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe
in twenty (20) years. Considering that the law was designed to cover a "combination or series
of overt or criminal acts," or "a pattern of overt or criminal acts," from what time shall the
period of prescription be reckoned? From the first, second, third or last act of the series or
pattern? What shall be the time gap between two succeeding acts? If the last act of a series
or combination was committed twenty or more years after the next preceding one, would
not the crime have prescribed, thereby resulting in the total extinction of criminal liability
under Article 89(b) of the Revised Penal Code? In antithesis, the RICO law affords more
clarity and definiteness in describing "pattern of racketeering activity" as "at least two acts of
racketeering activity, one of which occurred within ten years (excluding any period of
imprisonment) after the commission of a prior act of racketeering activity."119119 119 The U.S.
state statutes similarly provide specific time frames within which racketeering acts are
committed.
The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial
construction. However, it certainly would not be feasible for the Court to interpret each and
every ambiguous provision without falling into the trap of judicial legislation. A statute
should be construed to avoid constitutional question only when an alternative interpretation
is possible from its language.120 Borrowing from the opinion of the court121 in
Northwestern,122 the law "may be a poorly drafted statute; but rewriting it is a job for
Congress, if it so inclined, and not for this Court." But where the law as the one in question is
void on its face for its patent ambiguity in that it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application,
the Court cannot breathe life to it through the guise of construction.
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution has the burden of
"showing a combination or series resulting in the crime of plunder." And, once the minimum
requirements for a combination or a series of acts are met, there is no necessity for the
prosecution to prove each and every other act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate, or acquire ill-gotten wealth.123
By its language, Section 4 eliminates proof of each and every component criminal act of
plunder by the accused and limits itself to establishing just the pattern of overt or criminal
acts indicative of unlawful scheme or conspiracy. The law, in effect, penalizes the accused on
the basis of a proven scheme or conspiracy to commit plunder without the necessity of
establishing beyond reasonable doubt each and every criminal act done by the accused in the
crime of plunder. To quote Fr. Bernas again: "How can you have a ‘series’ of criminal acts if
the elements that are supposed to constitute the series are not proved to be criminal?"124
Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act
done by the accused in the furtherance of the scheme or conspiracy to acquire ill-gotten
wealth, it being sufficient just to prove a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy, the Plunder Law effectively eliminated the mens rea
or criminal intent as an element of the crime. Because of this, it is easier to convict for
plunder and sentence the accused to death than to convict him for each of the component
crimes otherwise punishable under the Revised Penal Code and other laws which are bailable
offenses. The resultant absurdity strikes at the very heart if the constitutional guarantees of
due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal
Code, e.g. malversation, estafa, bribery and other crimes committed by public officers. As
such, they are by nature mala in se crimes. Since intent is an essential element of these
crimes, then, with more reason that criminal intent be established in plunder which, under
R.A. No. 7659, is one of the heinous crimes125 as pronounced in one of its whereas clauses.126
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special
law does not necessarily make the same mala prohibita where criminal intent is not
essential, although the term refers generally to acts made criminal by special laws. For there
is a marked difference between the two. According to a well-known author on criminal law:
There is a distinction between crimes which are mala in se, or wrongful from their nature,
such as theft, rape, homicide, etc., and those that are mala prohibita, or wrong merely
because prohibited by statute, such as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society as to call for almost
unanimous condemnation of its members; while crimes mala prohibita are violations of mere
rules of convenience designed to secure a more orderly regulation of the affairs of society.
(Bouvier’s Law Dictionary, Rawle’s 3rd Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has
the law been violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico,
14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as
in illegal possession of firearms. (People vs. Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies defined and penalized by the Revised
Penal Code. When the acts are inherently immoral, they are mala in se, even if punished by
special laws. On the other hand, there are crimes in the Revised Penal Code which were
originally defined and penalized by special laws. Among them are possession and use of
opium, malversation, brigandage, and libel.127
The component acts constituting plunder, a heinous crime, being inherently wrongful and
immoral, are patently mala in se, even if punished by a special law and accordingly, criminal
intent must clearly be established together with the other elements of the crime; otherwise,
no crime is committed. By eliminating mens rea, R.A. 7080 does not require the prosecution
to prove beyond reasonable doubt the component acts constituting plunder and imposes a
lesser burden of proof on the prosecution, thus paving the way for the imposition of the
penalty of reclusion perpetua to death on the accused, in plain violation of the due process
and equal protection clauses of the Constitution. Evidently, the authority of the legislature to
omit the element of scienter in the proof of a crime refers to regulatory measures in the
exercise of police power, where the emphasis of the law is to secure a more orderly
regulations of the offense of society, rather than the punishment of the crimes. So that in
mala prohibita prosecutions, the element of criminal intent is a requirement for conviction
and must be provided in the special law penalizing what are traditionally mala in se crimes.
As correctly pointed out by petitioner,128 citing U.S. Supreme Court decisions, the Smith Act
was ruled to require "intent" to advocate129 and held to require knowledge of illegal
advocacy.130 And in another case,131 and ordinance making illegal the possession of obscene
books was declared unconstitutional for lack of scienter requirement.
Mens rea is a substantive due process requirement under the Constitution, and this is a
limitation on police power. Additionally, lack of mens rea or a clarifying scienter requirement
aggravates the vagueness of a statute.
In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of
eliminating mens rea, thus:
The Government asks us by a feat of construction radically to change the weights and
balances in the scales of justice. The purpose and obvious effect of doing away with the
requirement of a guilty intent is to ease the prosecution’s party to conviction, to strip the
defendant of such benefit as he derived at common law from innocence of evil purpose, and
to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the
immunities of the individual should not be extended to common law crimes on judicial
initiative.
In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of
the legislature to complex mala in se crimes with mala prohibita, saying:
x x x although there has been a tendency to penalize crimes under special laws with penalties
"borrowed" from the Code, there is still the question of legislative authority to consolidate
crimes punished under different statutes. Worse, where one is punished under the Code and
the other by the special law, both of these contingencies had not been contemplated when
the concept of a delito complejo was engrafted into the Code.133
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
The case at bar has been subject to controversy principally due to the personalities involved
herein. The fact that one of petitioner’s counsels134 was a co-sponsor of the Plunder Law135
and petitioner himself voted for its passage when he was still a Senator would not in any put
him in estoppel to question its constitutionality. The rule on estoppel applies to questions of
fact, not of law.136 Moreover, estoppel should be resorted to only as a means of preventing
injustice.137 To hold that petitioner is estopped from questioning the validity of R.A. No. 7080
because he had earlier voted for its passage would result in injustice not only to him, but to
all others who may be held liable under this statute. In People vs. Vera,138 citing the U.S. case
of Attorney General v. Perkins, the Court held:
x x x The idea seems to be that the people are estopped from questioning the validity of a
law enacted by their representatives; that to an accusation by the people of Michigan of
usurpation upon their government, a statute enacted by the people of Michigan is an
adequate statute relied on in justification is unconstitutional, it is a statute only in form, and
lacks the force of law, and is of no more saving effect to justify action under it it had never
been enacted. the constitution is the supreme law, and to its behests the courts, the
legislature, and the people must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat the ends of justice by
permitting a person to be deprived of his life and liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a
response to the felt need at the time that existing laws were inadequate to penalize the
nature and magnitude of corruption that characterized a "previous regime." 140 However,
where the law, such as R.A. 7080, is so indefinite that the line between innocent and
condemned conduct becomes a matter of guesswork, the indefiniteness runs afoul of due
process concepts which require that persons be given full notice of what to avoid, and that
the discretion of law enforcement officials, with the attendant dangers of arbitrary and
discriminatory enforcement, be limited by explicit legislative standards.141 It obfuscates the
mind to ponder that such an ambiguous law as R.A. No. 7080 would put on the balance the
life and liberty of the accused against whom all the resources of the State are arrayed. It
could be used as a tool against political enemies and a weapon of hate and revenge by
whoever wields the levers of power.
I submit that the charge against petitioner in the Amended Information in Criminal Case No.
26558 does not constitute "plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at
all, the acts charged may constitute offenses punishable under the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) or the Revised Penal Code. Hence, the information charging
petitioner with plunder must be quashed. Such quashal, however, should be without
prejudice to the filing of new informations for acts under R.A. No. 3019, of the Revised Penal
Code and other laws. Double jeopardy would not bar the filing of the same because the
dismissal of the case is made with the express consent of the petitioner-accused.142
In view of the foregoing, I vote to GRANT the petition.
SEPARATE DISSENTING OPINION
PARDO, J.:
With due respect, I vote to grant the petition on the second ground raised therein, that is,
multiplicity of offenses charged in the amended information.1 Consequently, the resolution
of the Sandiganbayan must be set aside, and the case remanded to the Ombudsman for the
amendment of the information to charge only a single offense.
In my view, it is unnecessary to rule on the unconstitutionality of the entire law,2 R. A. No.
7080, as amended by R. A. No. 7659, although I share the opinion of the dissenting justices in
the case of People v. Echagaray,3 that the heinous crime law is unconstitutional. Hence, the
amendments to the plunder law prescribing the death penalty therefor are unconstitutional.
I am of the view that the plunder law penalizes acts that are mala in se, and consequently,
the charges must be the specific acts alleged to be in violation of the law, committed with
malice and criminal intent. At any rate, I venture the view that Section 4, R. A. No. 7080, must
be interpreted as requiring proof beyond reasonable doubt of all the elements of plunder as
prescribed in the law, including the elements of the component crimes, otherwise, the
section will be unconstitutional.

Footnotes
1
Petition, Annex "B", Motion to Quash, Ground II.
2 ‘The Court will not pass upon a constitutional question although properly
presented by the record if the case can be disposed of on some other ground."
(Laurel v. Garcia, 187 SCRA 797, 813 [1990], citing Siler v. Louisville and Nashville R.
Co., 312 U.S. 175 [1909]; Railroad Commission v. Pullman Co., 312 U.S. 496 [1941];
Lalican v. Vergara, 342 Phil. 485, 498 [1997]; Mirasol v. Court of Appeals, G. R. No.
128448, February 1, 2001.
3 335 Phil. 343 [1997].
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SANDOVAL–GUTIERREZ, J.:
At times when speaking against popular views can subject a member of this Court to all sorts
of unfair criticism and pressure from the media, the lure not to wield the judicial pen is at its
crest. Nevertheless, I cannot relent to such enticement. Silence under such circumstances
may mean not only weakness, but also insensibility to the legal consequence of a
constitutional adjudication bound to affect not only the litigants, but the citizenry as well.
Indeed, the core issue in this case is highly significant, the resolution of which is inevitably
historical. Thus, today, I prefer to take a stand and, therefore, dissent from the majority
opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080),1 entitled "An Act Penalizing
the Crime of Plunder," is controversial and far-reaching. Nonetheless, it is my view that it is
also vague and fuzzy, inexact and sweeping. This brings us to the query - may R.A. No. 7080
be enforced as valid and its shortcomings supplied by judicial interpretation? My answer, to
be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a crime possesses
inviolable rights founded on the Constitution which even the welfare of the society as a
whole cannot override. The rights guaranteed to him by the Constitution are not subject to
political bargaining or to the calculus of social interest. Thus, no matter how socially-relevant
the purpose of a law is, it must be nullified if it tramples upon the basic rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person shall be deprived of
life, liberty, or property without due process of law."2 This provision in the Bill of Rights
serves as a protection of the Filipino people against any form of arbitrariness on the part of
the government, whether committed by the legislature, the executive or the judiciary. Any
government act that militates against the ordinary norms of justice and fair play is
considered an infraction of the due process; and this is true whether the denial involves
violation merely of the procedure prescribed by law or affects the very validity of the law
itself.3
The same Due Process Clause protects an accused against conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the crime with which he is
charged. The reason for this was enunciated in In Re Winship:4 "[t]he accused during a
criminal prosecution has at stake interest of immense importance, both because of the
possibility that he may lose his liberty (or life) upon conviction and because of the certainty
that he would be stigmatized by the conviction." In view thereof, any attempt on the part of
the legislature to diminish the requirement of proof in criminal cases should be discouraged.
I
R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower
the degree of proof required in the crime of plunder from proof beyond reasonable doubt to
mere preponderance of or substantial evidence, it nevertheless lessened the burden of the
prosecution by dispensing with proof of the essential elements of plunder. Let me quote the
offending provision:
SEC. 4. Rule of Evidence. – For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate, or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.
In every criminal prosecution, the law recognizes certain elements as material or essential.
Calling a particular fact an "essential element" carries certain legal consequences. In this
case, the consequence that matters is that the Sandiganbayan cannot convict the accused
unless it unanimously5 finds that the prosecution has proved beyond reasonable doubt each
element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to constitute the crime of
plunder?
Ordinarily, the factual elements that make up a crime are specified in the law that defines it.
Under R.A. No 7080, as amended, the essential elements of the crime of plunder are: a) that
the offender is a public officer; b) that he amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts described in Section 1 (d), to wit:
 1) Through misappropriation, conversion, misuse, or malversation of public funds
or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks, or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivision, agencies or instrumentalities or
government –owned or controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly, or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular person or special interests; or
6) By taking undue advantage of official position, authority, relationship,
connection, or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million
Pesos (P50,000,000.00).6
Does the phrase "combination or series of overt or criminal acts described in Section 1 (d)"
mean that the "criminal acts" merely constitute the means to commit plunder? Or does it
mean that those "criminal acts," are essential elements of plunder?
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution
to prove each and every criminal act done by the accused, the legislature, in effect, rendered
the enumerated "criminal acts" under Section 1 (d) merely as means and not as essential
elements of plunder. This is constitutionally infirmed and repugnant to the basic idea of
justice and fair play.7 As a matter of due process, the prosecution is required to prove
beyond reasonable doubt every fact necessary to constitute the crime with which the
defendant is charged. The State may not specify a lesser burden of proof for an element of
a crime.8 With more reason, it should not be allowed to go around the principle by
characterizing an essential element of plunder merely as a "means" of committing the crime.
For the result is the reduction of the burden of the prosecution to prove the guilt of the
accused beyond reasonable doubt.
Let me elucidate on the vices that come with Section 4.
First, treating the specific "criminal acts" merely as means to commit the greater crime of
plunder, in effect, allows the imposition of the death penalty even if the Justices of the
Sandiganbayan did not "unanimously" find that the accused are guilty beyond reasonable
doubt of those "criminal acts." The three Justices need only agree that the accused
committed at least two of the criminal acts, even if not proved by evidence beyond
reasonable doubt. They do not have to agree unanimously on which two.
Let us consider the present case against former President Joseph Ejercito Estrada. The
accusatory portion of the information in Criminal Case No. 26558 charges Mr. Estrada and
others of willfully, unlawfully and criminally amassing, accumulating and acquiring ill-gotten
wealth in the aggregate amount of P4,097,804,173.17 more or less, through a combination
and series of overt and criminal acts described as follows:
"a) by receiving, collecting, directly or indirectly, on many instances, so called
"jueteng money" from gambling operators in connivance with co-accused Jose
"Jinggoy" Estrada, Yolanda Ricaforte and Edward Serapio, as witnessed by Gov. Luis
Chavit Singson, among other witnesses, in the aggregate amount of FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00), more or less, in consideration of
their protection from arrest or interference by law enforcers in their illegal
"jueteng" activities; and
b) by misappropriating, converting and misusing his gain and benefit public fund in
the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or
less, representing a portion of the One Hundred Seventy Million Pesos
(P170,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur
under R.A. No. 7171, in conspiracy with co-accused Charlie "Atong" Ang, Alma
Alfaro, Eleuterio Tan a.k.a Eleuterio Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia
Rajas as witnesses by Gov. Luis "Chavit" Singson, among other witnesses; and
c) by directing, ordering and compelling the Government Service Insurance System
(GSIS) and the Social Security System (SSS) to purchase and buy a combined total of
P681,733,000. shares of stock of Belle Corporation in the aggregate value of One
Billion Eight Hundred Forty Seven Pesos and Fifty Centavos (P1,847,578,057.50), for
the purpose of collecting for his personal gain and benefit, as in fact he did collect
and receive the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00), as commission from said stock purchase;
and
d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17)
comprising his unexplained wealth, acquired, accumulated and amassed by him
under his account name "Jose Velarde" with Equitable PCI Bank."
Since it is not necessary to prove each criminal act, the inevitable conclusion is that Mr.
Estrada may be convicted of the crime of plunder without the Justices of the Sandiganbayan
"unanimously" deciding which two of the four criminal acts have actually been committed. In
short, all that R.A. No. 7080 requires is that each Justice must be convinced of the existence
of a "combination or series." As to which criminal acts constitute a combination or series, the
Justices need not be in full agreement. Surely, this would cover-up a wide disagreement
among them about just what the accused actually did or did not do. Stated differently, even
if the Justices are not unified in their determination on what criminal acts were actually
committed by the accused, which need not be proved under the law, still, they could convict
him of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the
grand scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon the
individual "criminal acts" in order to assure the guilt of the accused of plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which
by themselves are currently punishable under separate statutes or provisions of law. The six
(6) separate crimes become mere "means or similar schemes" to commit the single offense
of plunder. It bears emphasis that each of the separate offenses is a crime mala in se. The
commission of any offense mala in se is inherently accompanied by a guilty mind or a
criminal intent.9 Unfortunately, R.A. No. 7080 converted the six mala in se offenses into one
crime which is mala prohibita wherein the intent becomes insignificant. Upon the
commission of the proscribed act, without proof of intent, the law is considered violated.10
Consequently, even acts recklessly committed (i.e. without intent) can be punished by death.
Third, Section 4 mandates that it shall not be necessary for the prosecution to prove each
and every criminal act done by the accused x x x it being sufficient to prove beyond
reasonable doubt a pattern of overt or criminal acts. By its own terminology, Section 4
requires that the "pattern" be proved by evidence beyond reasonable doubt. Initially, we
must disassociate the specific "criminal acts" from the "pattern of criminal acts." These two
phrases do not refer to one and the same thing. Pattern, as defined in the dictionary, means
an established mode of behavior.11 In the crime of plunder, the existence of a "pattern" can
only be inferred from the specific "criminal acts" done by the accused. Several queries may
be raised to determine the existence of a "pattern." Are these criminal acts related or tied to
one another? Is the subsequent criminal act a mere continuation of the prior criminal act? Do
these criminal acts complement one another as to bring about a single result? Inevitably, one
must focus first on each criminal act to ascertain the relationship or connection it bears with
the other criminal acts, and from there determine whether a certain "pattern" exists. But
how could "pattern" be proved beyond reasonable doubt when in the first place the
specific "criminal acts" from which such pattern may be inferred are not even required to
be proved?
And fourth, plunder is a very serious offense. What is at stake under the law is not only the
liberty of the accused but his life and property as well. Thus, it will be extremely unjust to
lessen the prosecution’s burden of proof to such a degree not commensurate to what the
accused stands to suffer. If a person will lose his life, justice requires that every fact on which
his guilt may be inferred must be proved beyond reasonable doubt.
Providing a rule of evidence which does not require proof beyond reasonable doubt to
establish every fact necessary to constitute the crime is a clear infringement of due process.
While the principles of the law of evidence are the same whether applied on civil or criminal
trials, they are more strictly observed in criminal cases.12 Thus, while the legislature of a
state has the power to prescribe new or alter existing rules of evidence, or to prescribe
methods of proof, the same must not violate constitutional requirements or deprive any
person of his constitutional rights.13 Unfortunately, under R.A. No. 7080, the State did not
only specify a lesser burden of proof to sustain an element of the crime; it even dispensed
with proof by not considering the specific "criminal acts" as essential elements. That it was
the clear intention of the legislature is evident from the Senate deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of evidence will, therefore,
be required? Must there be a pattern of the criminal acts? Must there be a series of
briberies, for example? Or, can there be only one?
Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy
to amass, accumulate, or acquire ill-gotten wealth… But, there must be enough evidence
"sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts of the
overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this proposal measure.
Senator Guingona. That is sufficient to establish the prima facie case.14
xxxxxx
Senator Romulo. That, perhaps, is a good provision of the bill. But, may I ask, Mr. President,
what is in this bill that would insure that there would be a speedier process by which this
crime of plunder would readily and immediately processed and convicted or acquitted than is
now existing in present laws?
Senator Tanada. Yes, x x x.
Now, on the second point, Mr. President, I believe that what could make faster and speedier
prosecutions of these grafters would be a change that will be authorized in this bill, at least,
in the filing of information against the perpetrators. Under the existing criminal procedure, as
I said earlier, there can only be one offense charged per information. So, if there is going to
be a series of overt or criminal acts committed by the grafter, then that would necessitate
the filing of so many informations against him. Now, if this bill becomes a law, then that
means that there can be only one information filed against the alleged grafter. And the
evidence that will be required to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to establish the conspiracy or scheme to
commit this crime of plunder.15
xxxxxx
Senator Guingona. May I just be clarified Mr. President. In this Section 4, a pattern of the
criminal acts is all that is required. Would this pattern of criminal acts be also sufficient to
establish a prima facie case?
Senator Tanada. Mr. President, under Section 4, it would not only be sufficient to establish a
prima facie case. It would be sufficient to establish guilt as long as the evidence, necessary to
establish guilt beyond reasonable doubt is presented."16
In dispensing with proof of each criminal act, the clear objective of Congress is to render it
less difficult for the prosecution to prove the crime of plunder. While this presupposes a
noble intention, I do not think there is a sufficient justification. I, too, have the strong desire
to eliminate the sickness of corruption pervading in the Philippine government, but more
than anything else, I believe there are certain principles which must be maintained if we
want to preserve fairness in our criminal justice system. If the prosecution is not mandated
to prove the specific "criminal acts," then how can it establish the existence of the requisite
"combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term
"pattern." As stated by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt
or criminal acts" embodied in the law was derived by Congress from the RICO (Racketeer
Influenced and Corrupt Organizations) statute.17 I am, therefore, constrained to refer to US
law and jurisprudence. "Pattern" as defined in the RICO statute means "as requiring at least
two acts of racketeering activity….the last of which occurred within ten years….after the
commission of the prior act of racketeering activity.18
Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify
a) the number of criminal acts necessary before there could be a "pattern," as well as b) the
period within which the succeeding criminal acts should be committed. These failures render
the law void for its vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are
necessary to give rise to a "pattern of overt or criminal acts" in the crime of plunder. If there
is no numerical standard, then, how should the existence of "pattern" be ascertained?
Should it be by proximity of time or of relationship? May an act committed two decades after
the prior criminal act be linked with the latter for the purpose of establishing a pattern?
It must be remembered that plunder, being a continuous offense, the "pattern of overt or
criminal acts" can extend indefinitely, i.e., as long as the succeeding criminal acts may be
linked to the initial criminal act. This will expose the person concerned to criminal
prosecution ad infinitum. Surely, it will undermine the purpose of the statute of limitations,
i.e., to discourage prosecution based on facts obscured by the passage of time, and to
encourage law enforcement officials to investigate suspected criminal activity promptly.19 All
these undesirable consequences arise from the fact that the plunder law fails to provide a
period within which the next criminal act must be committed for the purpose of
establishing a pattern. I believe R.A. No. 7080 should have provided a cut-off period after
which a succeeding act may no longer be attached to the prior act for the purpose of
establishing a pattern. In reiteration, the RICO law defines "pattern" as requiring at least two
acts of racketeering activity… the last of which occurred within ten years… after the
commission of the prior act of racketeering activity. Such limitation prevents a subsequent
racketeering activity, separated by more than a decade from the prior act of racketeering,
from being appended to the latter for the purpose of coming up with a pattern. We do not
have the same safeguard under our law.
Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States Supreme Court expressed
dismay that Congress has failed to properly define the term "pattern" at all but has simply
required that a "pattern" includes at least two acts of racketeering activity. The Court
concluded that "pattern" involves something more than two acts, and after examining RICO’s
legislative history, settled on "continuity plus relationship" as the additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel.,21 the U.S. Supreme Court conceded that
"the continuity plus relationship" means different things to different circuits. Nevertheless, it
held firm to the Sedima requirement that "in order to establish a pattern, the government
has to show "that the racketeering predicates are related, and that they amount to or pose a
threat of continued criminal activity." Justice Scalia, in a concurring opinion in which three
other justices joined, derided the "relationship" requirement as not "much more helpful [to
the lower courts] than telling them to look for a "pattern" - - which is what the statute
already says." As for the continuity requirement, Justice Scalia said: "Today’s opinion has
added nothing to improve our prior guidance, which has created a kaleidoscope of circuit
positions, except to clarify that RICO may in addition be violated when there is a 'threat of
continuity'. It seems to me this increases rather than removes the vagueness. There is no
reason to believe that the Court of Appeals will be any more unified in the future, than they
have in the past, regarding the content of this law."
Aware of the ambiguities present in the RICO law the drafters of the New York "Organized
Crime Control Act" (a progeny of RICO) now more specifically define "pattern of criminal
activity" as conduct engaged in by persons charged in an enterprise corruption count
constituting three or more criminal acts that (a) were committed within ten years from the
commencement of the criminal action; (b) are neither isolated incidents, nor so closely
related and connected in point of time or circumstance of commission as to constitute a
criminal offense or criminal transaction, as those terms are defined in section 40.10 of the
criminal procedure law; and (c) are either: (i) related to one another through a common
scheme or plan or (ii) were committed, solicited, requested, importuned or intentionally
aided by persons acting with the mental culpability required for the commission thereof and
associated with or in the criminal enterprise.22
If the term "pattern" as defined in the RICO law is continuously subjected to constitutional
attacks because of its alleged vagueness, how much more the term "pattern" in R.A. No.
7080 which does not carry with it any limiting definition and can only be read in context.
Indeed, there is no doubt that the invalidity of the law based on vagueness is not merely
debatable - it is manifest. Thus, this Court should declare R.A. No. 7080 unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis of the
law, a conviction of an accused cannot be sustained. A statute that does not provide
adequate standards for adjudication, by which guilt or innocence may be determined, should
be struck down.23 Crimes must be defined in a statute with appropriate certainty and
definiteness.24 The standards of certainty in a statute prescribing punishment for offenses
are higher than in those depending primarily on civil sanctions for their enforcement.25 A
penal statute should therefore be clear and unambiguous.26 It should explicitly establish the
elements of the crime which it creates27 and provide some reasonably ascertainable
standards of guilt.28 It should not admit of such a double meaning that a citizen may act on
one conception of its requirements and the courts on another.29
I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of
the terms ‘combination’ and ‘series’ as well as recourse to the deliberations of the
lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the requirement of the
Constitution on clarity and definiteness." The deliberations of our law-makers, as quoted
verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on what constitute
"combination" and "series."30
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or series of overt or
criminal acts." As can be gleaned from the Record of the Senate, the determining factor of
R.A. 7080 is the plurality of the overt acts or criminal acts under a grand scheme or
conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds
fifty million pesos, a person cannot be prosecuted for the crime of plunder if there is only a
single criminal act.31
Considering that without plurality of overt or criminal acts, there can be no crime of plunder,
due process of law demands that the terms "combination" and "series" be defined with
exactitude in the law itself. Equating these terms with mere "plurality" or "two or more," is
inaccurate and speculative. For one, a "series" is a group of usually three or more things or
events standing or succeeding in order and having like relationship to each other.32 The
Special Prosecution Division Panel defines it as "at least three of the acts enumerated under
Section 1(d) thereof."33 But it can very well be interpreted as only one act repeated at least
three times. And the Office of the Solicitor General, invoking the deliberations of the House
of Representatives, contends differently. It defines the term series as a "repetition" or
pertaining to "two or more."34 The disparity in the Prosecution and OSG’s positions clearly
shows how imprecise the term "series" is.
This should not be countenanced. Crimes are not to be created by inference.35 No one may
be required, at the peril of life, liberty or property to guess at, or speculate as to, the
meaning of a penal statute.36 An accused, regardless of who he is, is entitled to be tried only
under a clear and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the
Information clearly specified the acts constituting the crime of plunder. I do not agree. It is
the statute and not the accusation under it that prescribes the rule to govern conduct and
warns against aggression.37 If on its face, a statute is repugnant to the due process clause on
account of vagueness, specification in the Information of the details of the offense intended
to be charged will not serve to validate it.38
On the argument that this Court may clarify the vague terms or explain the limits of the
overbroad provisions of R.A. No. 7080, I should emphasize that this Court has no power to
legislate.
Precision must be the characteristic of penal legislation. For the Court to define what is a
crime is to go beyond the so-called positive role in the protection of civil liberties or
promotion of public interests. As stated by Justice Frankfurter, the Court should be wary of
judicial attempts to impose justice on the community; to deprive it of the wisdom that comes
from self-inflicted wounds and the strengths that grow with the burden of responsibility.39
A statute which is so vague as to permit the infliction of capital punishment on acts already
punished with lesser penalties by clearly formulated law is unconstitutional. The vagueness
cannot be cured by judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law. Hence,
there is greater need for precision of terms. The requirement that law creating a crime must
be sufficiently explicit to inform those subject to it, what conduct on their part will render
them liable to its penalties, has particular force when applied to statutes creating new
offenses. For that reason, those statutes may not be generally understood, or may be subject
of generally accepted construction.40
Today, I recall what James Madison remarked in presenting the Bill of Rights to the United
States Congress in 1789: "if they (Bill of Rights) are incorporated into the Constitution,
independent tribunals of justice will consider themselves in a peculiar manner the guardians
of those rights; they will be an impenetrable bulwark against every assumption of power in
the legislative or executive; and they will be naturally led to resist every encroachment upon
rights expressly stipulated for in the Constitution by the declaration of rights."41 Time did not
render his foreboding stale. Indeed, in every constitutional democracy, the judiciary has
become the vanguard of these rights. Now, it behooves this Court to strike an
unconstitutional law. The result, I concede, may not be politically desirable and acceptable,
nevertheless, I am fully convinced that it is constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS
CLAUSE of the Constitution. The vagueness of its terms and its incorporation of a rule of
evidence that reduces the burden of the prosecution in proving the crime of plunder
tramples upon the basic constitutional rights of the accused.
In fine, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No. 7080. The
issue before this Court is not the guilt or innocence of the accused, but the constitutionality
of the law. I vote to grant the petition, not because I favor Mr. Estrada, but because I look
beyond today and I see that this law can pose a serious threat to the life, liberty and property
of anyone who may come under its unconstitutional provisions. As a member of this Court,
my duty is to see to it that the law conforms to the Constitution and no other. I simply accused.7 In short, laws which create crime ought to be so explicit that all men subject to
cannot, in good conscience, fortify a law that is patently unconstitutional. their penalties may know what acts it is their duty to avoid.8

WHEREFORE, I vote to grant the petition. A reading of the Plunder Law immediately shows that it is phrased in a manner not
susceptible to ready or clear understanding. In the desire to cover under one single offense
of plunder every conceivable criminal activity committed by a high government official in the
course of his duties, Congress has come out with a law unduly vague, uncertain and broad.

DISSENTING OPINION The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed
in the context of freedom of speech and of the press. However, they apply equally, if not
more so, to capital offenses. In the present case, what the law seeks to protect or regulate
YNARES-SANTIAGO, J.:
involves the deprivation of life itself and not merely the regulation of expression.

It is an ancient maxim in law that in times of frenzy and excitement, when the desire to do
In its early formulation, the overbreadth doctrine states that a governmental purpose to
justice is tarnished by anger and vengeance, there is always the danger that vital protections
control or prevent activities constitutionally subject to regulation may not be achieved by
accorded an accused may be taken away.
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.9
The Plunder Law and its amendment were enacted to meet a national problem demanding
especially immediate and effective attention. By its very nature, the law deserved or required
A statute, especially one involving criminal prosecution, must be definite to be valid. A
legislative drafting of the highest order of clarity and precision.
statute is vague or overbroad, in violation of the due process clause, where its language does
not convey sufficiently definite warning to the average person as to the prohibited conduct.
Substantive due process dictates that there should be no arbitrariness, unreasonableness or A statute is unconstitutionally vague if people of common intelligence must necessarily guess
ambiguity in any law which deprives a person of his life or liberty. The trial and other at its meaning.10
procedures leading to conviction may be fair and proper. But if the law itself is not
reasonable legislation, due process is violated. Thus, an accused may not be sentenced to
It is not only prosecutors and judges who are concerned. The need for definiteness applies
suffer the lethal injection or life imprisonment for an offense understood only after judicial
with greater force to the accused and those in positions where opportunities for them to
construction takes over where Congress left off, and interpretation supplies its meaning.
commit the proscribed offense are present. They must understand exactly what prohibited
activity will be punished by capital punishment. Sadly, even the record of deliberations in
The Constitution guarantees both substantive and procedural due process1 as well as the Congress cited in the motion to quash shows that even the members of the Senate who are
right of the accused to be informed of the nature and cause of the accusation against him.2 illustrious lawyers found the Plunder Law vague.
Substantive due process requires that a criminal statute should not be vague and uncertain.3
More explicitly –
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least
P50,000,000.00 of ill-gotten wealth is punished by reclusion perpetua to death, if committed
That the terms of a penal statute. . . must be sufficiently explicit to inform those who are as follows:
subject to it what conduct on their part will render them liable to penalties, is a well–
recognized requirement, consonant alike with ordinary notions of fair play and the settled
1) Through misappropriation, conversion, misuse, or malversation of public funds
rules of law. And a statute which either forbids or requires the doing of an act in terms so
or raids on the public treasury;
vague that men of common intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process.4
2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
The doctrine of constitutional uncertainty is also based on the right of the accused to be
connection with any government contract or project or by reason of the office or
informed of the nature and cause of the accusation.5 Fundamental fairness dictates that a
position of the public officer concerned;
person cannot be sent to jail for a crime that he cannot with reasonable certainty know he
was committing.6 Statutes defining crimes run afoul of the due process clause if they fail to
give adequate guidance to those who would be law-abiding, to advise defendants of the 3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
nature of the offense with which they are charged or to guide courts trying those who are National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;
 4) By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.11
The crimes of malversation of public funds and bribery, which appear to be included among
the modes of committing plunder, have acquired well-defined meanings under our present
penal statutes. The accused immediately knows how to defend and justify his actions. The
prosecution understands the quantum and nature of the evidence he has to produce in
court. The Judge can apply the law with straight and positive judgment because there is no
vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not make any reference
to any specific provision of laws other than R.A. 7080, as amended. It is an entirely new
offense where malversation or bribery become "generic terms" according to the court. And
since "generic" refers to an entire group or class of related matters, the discretion given to
the prosecutor and the judge figuratively runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped with "misuse of public
funds." Misuse can be as innocuous as error or it can be as severe as corruption or
embezzlement. The terms "abuse," "distortion," "misapplication," "mismanagement," "poor
stewardship," "malpractice," "debasement," or "breach of trust," all conceivably fall under
the generic term "misuse." Exactly when does an administrative offense of misuse become
the capital crime of plunder? What degree of misuse is contemplated under the law?
A penal law violates due process where inherently vague statutory language permits
selective law enforcement.12 Under the Plunder Law, a crusading public officer who steps on
too many important toes in the course of his campaign could be prosecuted for a capital
offense, while for exactly the same acts, an official who tries to please everybody can be
charged whether administratively or for a much lighter offense.
For instance, direct bribery under Article 210 of the Revised Penal Code is punished with
prision mayor in its medium or minimum periods, prision correccional in its medium period,
or prision mayor in its minimum period, depending on the manner of commission.13 Indirect
bribery under Article 211 is punished with prision correccional in its medium and maximum
periods.14 Under the Plunder Law, the penalty is reclusion perpetua to death. The void-for-
vagueness infirmity becomes all the more apparent if the proscribed activity is "misuse of
public funds." The prosecutor is given broad powers of selective law enforcement. For
"misuse," exactly the same acts could be punished with death under the Plunder Law, or
mere dismissal with prejudice to future government employment under the Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and orders intended to
benefit particular persons or special interests" also calls for more specific elucidation. If the
only person benefited is himself, does that fall under "particular person?" Decrees and orders
issued by a top government official may be intended to benefit certain segments of society
such as farmers, manufacturers, residents of a geographical area and the like. If in the
process a close relative acquires P50,000,000.00 because of development in that sector
solely because of the decree and without lifting a finger, is that plunder? The vagueness can
be better appreciated by referring to petitioner’s arguments that the element of mens rea in
mala in se crimes has been abolished and the offenses have been converted to mala
prohibita. If the guilty intent is eliminated, even innocent acts can be plunder. The law was
not drafted for petitioner alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law was to take out the
provisions of the Revised Penal Code on malversation, estafa, bribery, and other crimes
committed by public officers, mix these with special laws on graft and corruption and
together with a couple of non-criminal acts, combine them into a special law and call it
"plunder."
Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs.
But in those acts mala prohibita, the only inquiry is: has the law been violated?15 Acts
constituting malversation, estafa, and bribery are mala in se. The courts must inquire into the
criminal intent, the evil nature or wrongful disposition behind the criminal acts. In mala
prohibita crimes, there is a violation of a prohibitory law and the inquiry is, therefore, has the
law been violated?
In the crime of plunder, it is enough that the acts defining malversation or bribery are
described. The court then proceeds to determine whether the acts fall under the prohibitory
terms of the law. Criminal intent no longer has to be proved. The criminal intent to commit
the crime is not required to be proved. The desire to benefit particular persons does not have
to spring from criminal intent under the special law creating the crime of plunder. In
malversation or bribery under the Revised Penal Code, the criminal intent is an important
element of the criminal acts. Under the Plunder Law, it is enough that the acts are
committed.
Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se,
this will not exonerate him under the crime mala prohibita. This violates substantive due
process and the standards of fair play because mens rea is a constitutional guarantee under
the due process clause. Indeed, as stated by the U.S. Supreme Court in Morisette v. U.S.:16
The Government asks us by a feat of construction radically to change the weights and
balances in the scales of justice. The purpose and obvious effect of doing away with the
requirement of a guilty intent is to ease the prosecution’s party to conviction, to strip the
defendant of such benefit as he derived at common law from innocence of evil purpose,
and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of
the immunities of the individual should not be extended to common law crimes on judicial
initiative. (Emphasis ours)
By grafting several felonies, some mala in se and some mala prohibita, to constitute the
crime of plunder and by doing away with the standard of proof beyond reasonable doubt for
the component elements, the State would practically be given the judicial imprimatur to
impose the extreme penalty of death on the basis of proof only of the overall pattern of
overt or criminal acts showing unlawful scheme or conspiracy. This attempt of Congress to
tip the scales of criminal justice in favor of the state by doing away with the element of mens
rea and to pave the way for the accused to be convicted by depriving him of the defense of
criminal intent as to mala in se components of plunder will be anathema to substantive due
process which insures "respect for those personal immunities which are so rooted in the
traditions and conscience of our people as to be ranked as fundamental."17
Equally disagreeable is the provision of the Plunder Law which does away with the
requirement that each and every component of the criminal act of plunder be proved and
instead limits itself to proving only a pattern of overt acts indicative of the unlawful scheme
or conspiracy.18 In effect, the law seeks to penalize the accused only on the basis of a proven
scheme or conspiracy, and does away with the rights of the accused insofar as the
component crimes are concerned. In other words, R.A. No. 7080 circumvents the obligation
of the prosecution to prove beyond reasonable doubt every fact necessary to constitute the
crime of plunder, because the law requires merely proof of a pattern of overt acts showing
an unlawful scheme or conspiracy. What aggravates matters on this point is that under
controlling case law, conspiracy to defraud is not punishable under the Revised Penal Code. 19
Cutting corners on the burden of proof is unconstitutional because the standard of
reasonable doubt is part of the due process safeguard accorded an accused. The due process
clause protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.20
Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as grievous,
odious and hateful because of its inherent or magnified wickedness, viciousness, atrocity,
and perversity. There can be no quarrel with the legislative objective of reducing the upsurge
of such crimes which affect sustainable economic development and undermine the people’s
faith in Government and the latter’s ability to maintain peace and order. Nevertheless, due
process commands that even though the governmental purpose is legitimate and substantial,
that purpose cannot be pursued by means so vague and broad that they infringe on life or
stifle liberty when the end can be more narrowly achieved through existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or
impairment of life or liberty is critical.21
The problem of vagueness is reduced or eliminated if the different schemes mentioned in the
law as used in the acquisition of ill-gotten wealth are prosecuted under existing penal law.
The offenses are by their nature distinct and separate from each other and have acquired
established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses.
So may the receipt of commissions, gifts, or kickbacks by higher officials in connection with
government contracts. The four other methods or schemes mentioned in the law may be the
objects of separate penal statutes.
When the law creates a new crime of plunder through a combination or series of overt or
criminal acts, the courts have to supply missing elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a combination or series of
criminal acts. But when do certain acts constitute a combination or series? Does the Plunder
law provide that two or three acts of one crime of bribery constitute a combination or series
which qualify bribery into plunder? Or does bribery have to be conjoined with the separate
offense of malversation to become a combination? Or with malversation and fraudulent
conveyance or disposition of public assets or one of the other means or schemes before it
becomes a series?
I find it difficult to accept the wide discretion given to the prosecution by the Plunder Law. An
elective official who is a political threat may be charged for plunder as one single offense
punishable by death while one in the good graces of the powers-that-be is charged only
under the Revised Penal Code.
The confusion generated by a vague law is exemplified in the informations filed against
petitioner in this case. Petitioner was charged with eight crimes, namely: [1] plunder; [2]
violation of Section 3 (e) of R.A. 3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another
violation of Section 3 (e) of R.A. 3019; [5] violation of Section 3 (c) of R.A. 3019; [6] violation
of Section 7 (d) of R.A. 6713; [7] perjury; [8] illegal use of alias.
Only twelve days later, the prosecution withdrew five (5) of the informations which it
consolidated into only one offense of plunder. The prosecution was not clear about the steps
to take in instances where the words "combination" or "series" may or may not apply. It
could not understand the coverage of the law as acts repetitive of the same offense or acts
constituting one crime lumped up with other crimes or both criminal and non-criminal acts
punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No. 733, Senators Neptali
Gonzales and Wigberto Tanada voiced serious doubts on the constitutionality of the
definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as defined in this act, and while constituting a single
offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, falsification of public documents, coercion, theft,
fraud, and illegal exaction and graft or corrupt practices and like offenses. Now, Mr.
President, I think this provision, by itself will be vague. I am afraid that it may be faulted for
being violative of the due process clause and the right to be informed of the nature and
cause of accusation of an accused. Because what is meant by "series of overt or criminal
acts?" I mean, would 2, 4, or 5 constitute a series? During the period of amendments, can
we establish a minimum of overt acts like, for example, robbery in band? The law defines
what is robbery in band by the number of participants therein. In this particular case,
probably, we can statutorily provide for the definition of "series" so that two, for example,
would that already be a series? Or, three, what would be the basis for such determination?
Senator Tanada:
I think, Mr. President, that would be called for, this being a penal legislation, we should be
very clear as to what it encompasses; otherwise, we may contravene the constitutional
provision on the right of accused to due process. (Emphasis ours)22
The foregoing concerns to statutorily provide for the definition of "series" or "combination"
have, however, not been addressed and the terms were left undefined. The law, as presently
crafted, does not specify whether a "series" means two, three, four or even more of the
overt or criminal acts listed in Section 1 (d) of R.A. 7080.
Even more difficult to accept is when the trial court has to supply the missing elements, in
effect taking over corrective or punitive legislation from Congress. The attempts of the
Sandiganbayan in the questioned Resolution do not clarify. They instead serve to confuse and
increase the ambiguity even more.
The Sandiganbayan interprets the words "combination" and "series" of overt or criminal acts
through terms found in American decisions like "pattern," "conspiracy," "over-all unlawful
scheme," or "general plan of action or method."
The above definitions are not found in the Plunder Law. The use of such phrases as "over-all
scheme" or "general plan" indicates that the Sandiganbayan is expanding the coverage of the
law through the use of ambiguous phrases capable of dual or multiple applications. When do
two or three acts of the same offense of malversation constitute a "pattern," "a general plan
of action," or an "over-all scheme?" Would one malversation in the first week of a public
officer’s tenure and another similar act six (6) years later become a "combination," a
"pattern," or a "general plan of action?"
I agree with petitioner’s concern over the danger that the trial court may allow the
specifications of details in an information to validate a statute inherently void for vagueness.
An information cannot rise higher than the statute upon which it is based. Not even the
construction by the Sandiganbayan of a vague or ambiguous provision can supply the missing
ingredients of the Plunder Law.
The right of an accused to be informed of the nature and cause of the accusation against him
is most often exemplified in the care with which a complaint or information should be
drafted. However, the clarity and particularity required of an information should also be
present in the law upon which the charges are based. If the penal law is vague, any
particularity in the information will come from the prosecutor. The prosecution takes over
the role of Congress.
The fact that the details of the charges are specified in the Information will not cure the
statute of its constitutional infirmity. If on its face the challenged provision is repugnant to
the due process clause, specification of details of the offense intended to be charged would
not serve to validate it.23 In other words, it is the statute, not the accusation under it, that
prescribes the rule to govern conduct and warns against transgression. No one may be
required at peril of life, liberty or property to speculate as to the meaning of penal statutes.
All are entitled to be informed as to what the State commands or forbids.24
Definiteness is a due process requirement. It is especially important in its application to penal
statutes. Vagueness and unintelligibility will invariably lead to arbitrary government action.
The purpose of the due process clause is to exclude everything that is arbitrary and
capricious affecting the rights of the citizen.25 Congress, in exercising its power to declare
what acts constitute a crime, must inform the citizen with reasonable precision what acts it
intends to prohibit so that he may have a certain understandable rule of conduct and know
what acts it is his duty to avoid.26
The questioned statutes were enacted purportedly in the interest of justice, public peace and
order, and the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These
statutes allow the prosecutors and the courts arbitrary and too broad discretionary powers in
their enforcement. Fair, equal and impartial justice would be denied.
For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for
being unconstitutional.
MENDOZA, J., concurring in the judgment:
Before I explain my vote, I think it necessary to restate the basic facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20, 2001
when he was forced to vacate the presidency by people power and then Vice President
Gloria Macapagal-Arroyo succeeded him in office.1 He was charged, in eight cases filed with
the Sandiganbayan, with various offenses committed while in office, among them plunder,
for allegedly having amassed ill-gotten wealth in the amount of P4.1 billion, more or less. He
moved to quash the information for plunder on the ground that R.A. No. 7080, otherwise
called the Anti-Plunder Law, is unconstitutional and that the information charges more than
one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner’s motion, along with
those filed by his co-accused, Edward Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner
brought this petition for certiorari and prohibition under Rule 65 to set aside the
Sandiganbayan’s resolution principally on the ground that the Anti-Plunder Law is void for
being vague and overbroad. We gave due course to the petition and required respondents to
file comments and later heard the parties in oral arguments on September 18, 2001 and on
their memoranda filed on September 28, 2001 to consider the constitutional claims of
petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991 pursuant to
the constitutional mandate that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption."2 Section 2 of
the statute provides:
Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section 1(d)
hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.
Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court. The court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, R.A. No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or material possession of
any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by
any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds
or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.
Section 4 of the said law states:
Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
"ON ITS FACE"
The amended information against petitioner charges violations of §2, in relation to
§1(d)(1)(2), of the statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada
a.k.a "Asiong Salonga" and a.k.a "Jose Velarde," together with Jose "Jinggoy" Estrada, Charlie
"Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio
Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane
Does, of the crime of plunder, defined and penalized under R.A. No. 7080, as amended by
Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer,
being then the President of the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his family, relatives by
affinity or consanguinity, business associates, subordinates and/or other persons, by taking
undue advantage of his official position, authority, relationship, connection, or influence, did
then and there wilfully, unlawfully and criminally amass, accumulate and acquire by himself,
directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion
ninety seven million eight hundred four thousand one hundred seventy three pesos and
seventeen centavos [₱4,097,804,173.17], more or less, thereby unjustly enriching himself or
themselves at the expense and to the damage of the Filipino people and the Republic of the
Philippines, through any or a combination or a series of overt or criminal acts, or similar
schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several instances, money in
the aggregate amount of five hundred forty-five million pesos (₱545,000,000.00),
more or less, from illegal gambling in the form of gift, share, percentage, kickback
or any form of pecuniary benefit, by himself and/or in connivance with co-accused
Charlie "Atong" Ang, Jose "Jinggoy" Estrada, Yolanda T. Ricaforte, Edward Serapio,
and John Does and Jane Does, in consideration of toleration or protection of illegal
gambling;
(b) by diverting, receiving, misappropriating, converting or misusing directly or
indirectly, for his or their personal gain and benefit, public funds in the amount of
ONE HUNDRED THIRTY MILLION PESOS [₱130,000,000.00], more or less,
representing a portion of the two hundred million pesos [₱200,000,000.00]
tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Alma
Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane
Doe a.k.a. Delia Rajas, and other John Does and Jane Does;
(c) by directing, ordering and compelling, for his personal gain and benefit, the
Government Service Insurance System (GSIS) to purchase 351,878,000 shares of
stocks, more or less, and the Social Security System (SSS), 329,855,000 shares of
stocks, more or less, of the Belle Corporation in the amount of more or less one
billion one hundred two million nine hundred sixty five thousand six hundred seven
pesos and fifty centavos [₱1,102,965,607.50] and more or less seven hundred forty
four million six hundred twelve thousand and four hundred fifty pesos
[₱744,612,450.00], respectively, or a total of more or less one billion eight hundred
forty seven million five hundred seventy eight thousand fifty seven pesos and fifty
centavos [₱1,847,578,057.50]; and by collecting or receiving, directly or indirectly,
by himself and/or in connivance with John Does and Jane Does, commissions or
percentages by reason of said purchases of shares of stock in the amount of one
hundred eighty nine million seven hundred thousand pesos [₱189,700,000.00],
more or less, from the Belle Corporation which became part of the deposit in the
Equitable-PCI Bank under the account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares, percentages,
kickbacks, or any form of pecuniary benefits, in connivance with John Does and
Jane Does, in the amount of more or less three billion two hundred thirty three
million one hundred four thousand one hundred seventy three pesos and
seventeen centavos [₱3,233,104,173.17] and depositing the same under his
account name "Jose Velarde" at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are seeing
here is a wholesale attack on the validity of the entire statute. Petitioner makes little effort
to show the alleged invalidity of the statute as applied to him. His focus is instead on the
statute as a whole as he attacks "on their face" not only §§1(d)(1)(2) of the statute but also
its other provisions which deal with plunder committed by illegal or fraudulent disposition of
government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and establishment
of monopolies and combinations or implementation of decrees intended to benefit particular
persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What relevance do questions
regarding the establishment of monopolies and combinations, or the ownership of stocks in a
business enterprise, or the illegal or fraudulent dispositions of government property have to
the criminal prosecution of petitioner when they are not even mentioned in the amended
information filed against him? Why should it be important to inquire whether the phrase
"overt act" in §1(d) and §2 means the same thing as the phrase "criminal act" as used in the
same provisions when the acts imputed to petitioner in the amended information are
criminal acts? Had the provisions of the Revised Penal Code been subjected to this kind of
line-by-line scrutiny whenever a portion thereof was involved in a case, it is doubtful if we
would have the jurisprudence on penal law that we have today. The prosecution of crimes
would certainly have been hampered, if not stultified. We should not even attempt to
assume the power we are asked to exercise. "The delicate power of pronouncing an Act of
Congress unconstitutional is not to be exercised with reference to hypothetical cases . . . . In
determining the sufficiency of the notice a statute must of necessity be examined in the light
of the conduct with which a defendant is charged."3
Nonetheless, it is contended that because these provisions are void for being vague and
overbroad, the entire statute, including the part under which petitioner is being prosecuted,
is also void. And if the entire statute is void, there is no law under which he can be
prosecuted for plunder. Nullum crimen sine lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the validity of the entire statute.
The first is that the statute comes within the specific prohibitions of the Constitution and, for
this reason, it must be given strict scrutiny and the normal presumption of constitutionality
should not be applied to it nor the usual judicial deference given to the judgment of
Congress.4 The second justification given for the facial attack on the Anti-Plunder Law is that
it is vague and overbroad.5
We find no basis for such claims either in the rulings of this Court or of those of the U.S.
Supreme Court, from which petitioner’s counsel purports to draw for his conclusions. We
consider first the claim that the statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a fundamental right
is at stake, this Court will give the challenged law, administrative order, rule or regulation
stricter scrutiny" and that "It will not do for authorities to invoke the presumption of
regularity in the performance of official duties." As will presently be shown, "strict scrutiny,"
as used in that decision, is not the same thing as the "strict scrutiny" urged by petitioner.
Much less did this Court rule that because of the need to give "stricter scrutiny" to laws
abridging fundamental freedoms, it will not give such laws the presumption of validity.
Petitioner likewise cites "the most celebrated footnote in [American] constitutional law," i.e.,
footnote 4 of the opinion in United States v. Carolene Products Co.,7 in which it was stated:
There may be narrower scope for operation of the presumption of constitutionality when
legislation appears on its face to be within a specific prohibition of the Constitution, such as
those of the first ten amendments, which are deemed equally specific when held to be
embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes
which can ordinarily be expected to bring about repeal of undesirable legislation, is to be
subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are most other types of legislation.
Nor need we inquire whether similar considerations enter into the review of statutes
directed at particular religious, or national, or racial minorities: whether prejudice against
discrete and insular minorities may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to protect minorities, and
which may call for a correspondingly more searching judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is that "there may be
narrower scope for the operation of the presumption of constitutionality" for legislation
which comes within the first ten amendments to the American Federal Constitution
compared to legislation covered by the Fourteenth Amendment Due Process Clause. The
American Court did not say that such legislation is not to be presumed constitutional, much
less that it is presumptively invalid, but only that a "narrower scope" will be given for the
presumption of constitutionality in respect of such statutes. There is, therefore, no warrant
for petitioner’s contention that "the presumption of constitutionality of a legislative act is
applicable only where the Supreme Court deals with facts regarding ordinary economic
affairs, not where the interpretation of the text of the Constitution is involved."8
What footnote 4 of the Carolene Products case posits is a double standard of judicial review:
strict scrutiny for laws dealing with freedom of the mind or restricting the political process,
and deferential or rational basis standard of review for economic legislation. As Justice (later
Chief Justice) Fernando explained in Malate Hotel and Motel Operators Ass’n v. The City
Mayor,9 this simply means that "if the liberty involved were freedom of the mind or the
person, the standard for the validity of governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects what are at the most rights of property, the
permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of
speech, gender, or race and facial challenges are allowed for this purpose. But criminal
statutes, like the Anti-Plunder Law, while subject to strict construction, are not subject to
strict scrutiny. The two (i.e., strict construction and strict scrutiny) are not the same. The rule
of strict construction is a rule of legal hermeneutics which deals with the parsing of statutes
to determine the intent of the legislature. On the other hand, strict scrutiny is a standard of
judicial review for determining the quality and the amount of governmental interest brought
to justify the regulation of fundamental freedoms. It is set opposite such terms as
"deferential review" and "intermediate review."
Thus, under deferential review, laws are upheld if they rationally further a legitimate
governmental interest, without courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the objectives could be achieved.
Under intermediate review, the substantiality of the governmental interest is seriously
looked into and the availability of less restrictive alternatives are considered. Under strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest.10
Considering these degrees of strictness in the review of statutes, how many criminal laws can
survive the test of strict scrutiny to which petitioner proposes to subject them? How many
can pass muster if, as petitioner would have it, such statutes are not to be presumed
constitutional? Above all, what will happen to the State’s ability to deal with the problem of
crimes, and, in particular, with the problem of graft and corruption in government, if criminal
laws are to be upheld only if it is shown that there is a compelling governmental interest for
making certain conduct criminal and if there is no other means less restrictive than that
contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of
its validity. The void-for-vagueness doctrine states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of
due process of law."11 The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms."12
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as
a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow specificity."13
The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem
effect resulting from their very existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against socially harmful conduct.
In the area of criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put
it, in an opinion by Chief Justice Rehnquist, "we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First Amendment."14 In Broadrick v. Oklahoma,15
the Court ruled that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative Act is … the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid."16 As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff
who engages in some conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others."17
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one
to whom application of a statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."18 As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process typically
are invalidated [only] ‘as applied’ to a particular defendant."19 Consequently, there is no
basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected.20 It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.21 But, as the U.S. Supreme Court pointed out in
Younger v. Harris:22
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
This is the reason "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort,"23 and is generally
disfavored.24 In determining the constitutionality of a statute, therefore, its provisions which
are alleged to have been violated in a case must be examined in the light of the conduct with
which the defendant is charged.25
This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of the Anti-
Plunder Law is void on the ground of vagueness and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in the Sandiganbayan is
for violation of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law, which, so far as
pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt or criminal acts as described in Section 1(d)
hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death....
SEC. 1. Definition of Terms. ¾ ...
(d) "Ill-gotten wealth," means any asset, property, business enterprise or material possession
of any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by
any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds
or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;
The charge is that in violation of these provisions, during the period June 1998 to January
2001, petitioner, then the President of the Philippines, willfully, unlawfully, and criminally
amassed wealth in the total amount of P4,097,804,173.17, more or less, through "a
combination or series of overt or criminal acts," to wit: (1) by receiving or collecting the total
amount of P545,000,000.00, more or less, from illegal gambling by himself and/or in
connivance with his co-accused named therein, in exchange for protection of illegal
gambling; (2) by misappropriating, converting, or misusing, by himself or in connivance with
his co-accused named therein, public funds amounting to P130,000,000.00, more or less,
representing a portion of the share of the Province of Ilocos Sur in the tobacco excise tax; (3)
by ordering the GSIS and the SSS to buy shares of stocks of the Belle Corp., worth
P1,102,965,607.50 and P744,612,450.00 respectively, or the total amount of
P1,847,578,057.50, for which he received as commission the amount of P189,700,000.00,
more or less, from Belle Corp.; (4) by unjustly enriching himself from commissions, gifts,
shares, percentages, and kickbacks in the amount of P3,233,104,173.17, which he deposited
in the Equitable-PCI Bank under the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be mistaken as to what
petitioner is accused of in Criminal Case No. 26558 of the Sandiganbayan. But, repeatedly,
petitioner complains that the law is vague and deprives him of due process. He invokes the
ruling in Connally v. General Constr. Co.26 that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential of due process of law."
He does this by questioning not only §2, in relation to §1(d)(1)(2), as applied to him, but also
other provisions of the Anti-Plunder Law not involved in this case. In 55 out of 84 pages of
discussion in his Memorandum, petitioner tries to show why on their face these provisions
are vague and overbroad by asking questions regarding the meaning of some words and
phrases in the statute, to wit:
1. Whether "series" means two, three, or four overt or criminal acts listed in §1(d)
in view of the alleged divergence of interpretation given to this word by the
Ombudsman, the Solicitor General, and the Sandiganbayan, and whether the acts
in a series should be directly related to each other;
2. Whether "combination" includes two or more acts or at least two of the "means
or similar schemes" mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word "pattern" in §4
which requires that it be "indicative of an overall unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of public property or
technical malversation";
6. Whether "raids on the public treasury" refers to raids on the National Treasury
or the treasury of a province or municipality;
7. Whether the receipt or acceptance of a gift, commission, kickback, or pecuniary
benefits in connection with a government contract or by reason of his office, as
used in §1(d)(2), is the same as bribery in the Revised Penal Code or those which
are considered corrupt practices of public officers;
8. Whether "illegal or fraudulent conveyance or disposition of assets belonging to
the National Government," as used in §1(d)(3), refers to technical malversation or
illegal use of public funds or property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation, such as a family firm
engaged in fishing, is prohibited under §1(d)(4);
10. Whether the phrase "monopolies or other combinations in restraint of trade" in
§1(d)(5) means the same thing as "monopolies and combinations in restraint of
trade" in the Revised Penal Code because the latter contemplates monopolies and
combinations established by any person, not necessarily a public officer; and
11. Whether under §1(d)(5) it is the public officer who intends to confer benefit on
a particular person by implementing a decree or it is the decree that is intended to
benefit the particular person and the public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of petitioner27 as well as in
the dissent of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case, as already
pointed out. It is also evident from their examination that what they present are simply
questions of statutory construction to be resolved on a case-to-case basis. Consider, for
example, the following words and phrases in §1(d) and §2:
A. "Combination or series of overt or criminal acts"
Petitioner contends that the phrase "combination or series of overt, or criminal acts" in §1(d)
and §2 should state how many acts are needed in order to have a "combination" or a
"series." It is not really required that this be specified. Petitioner, as well as MR. JUSTICE
KAPUNAN, cites the following remarks of Senators Gonzales and Tañada during the
discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of plunder, as defined in this Act while
constituting a single offense, it must consist of a series of overt or criminal acts, such as
bribery, extortion, malversation of public funds, swindling, falsification of public documents,
coercion, theft, fraud, and illegal exaction, and graft or corrupt practices act and like
offenses. Now, Mr. President, I think, this provision, by itself, will be vague. I am afraid that it
might be faulted for being violative of the due process clause and the right to be informed of
the nature and cause of accusation of an accused. Because, what is meant by "series of overt
or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the period of
amendments, can we establish a minimum of overt acts like, for example, robbery in band?
The law defines what is robbery in band by the number of participants therein.
In this particular case, probably, we can statutorily provide for the definition of "series" so
that two, for example, would that be already a series? Or, three, what would be the basis for
such a determination?
SENATOR TAÑADA. I think, Mr. President, that would be called for, this being a penal
legislation, we should be very clear as to what it encompasses; otherwise, we may
contravene the constitutional provision on the right of the accused to due process.28
But, as the later discussion in the Senate shows, the senators in the end reached a consensus
as to the meaning of the phrase so that an enumeration of the number of acts needed was
no longer proposed. Thus, the record shows:
SENATOR MACEDA. In line with our interpellations that sometimes "one" or maybe even
"two" acts may already result in such a big amount, on line 25, would the Sponsor consider
deleting the words "a series of overt or." To read, therefore: "or conspiracy COMMITTED by
criminal acts such." Remove the idea of necessitating "a series." Anyway, the criminal acts
are in the plural.
SENATOR TAÑADA. That would mean a combination of two or more of the acts mentioned in
this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because "a series" implies several or many; two or more.
SENATOR TAÑADA: Accepted, Mr. President.
....
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more
means, we mean to say that number one and two or number one and something else are
included, how about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
....
REP. ISIDRO: When we say combination, it seems that ¾
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not
twice of one enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different
acts. It can not be a repetition of the same act.

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
But when we say "acts of plunder" there should be, at least, two or more.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.29
THE CHAIRMAN (REP. GARCIA): A series.
Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To
the contrary, Senators Gonzales and Tañada voted in favor of the bill on its third and final
REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we say combination or
reading on July 25, 1989. The ordinary meaning of the term "combination" as the "union of
series, we seem to say that two or more, ‘di ba?
two things or acts" was adopted, although in the case of "series," the senators agreed that a
repetition of two or more times of the same thing or act would suffice, thus departing from
the ordinary meaning of the word as "a group of usually three or more things or events THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from ordinary crimes. That is
standing or succeeding in order and having a like relationship to each other," or "a spatial or why, I said, that is a very good suggestion because if it is only one act, it may fall under
temporal succession of persons or things," or "a group that has or admits an order of ordinary crime but we have here a combination or series of overt or criminal acts. So. . .
arrangement exhibiting progression."30
....
In the Bicameral Conference Committee on Justice meeting held on May 7, 1991, the same
meanings were given to the words "combination" and "series." Representative Garcia REP. ISIDRO: When you say "combination", two different?
explained that a combination is composed of two or more of the overt or criminal acts
enumerated in §1(d), while a series is a repetition of any of the same overt or criminal acts. THE CHAIRMAN (REP. GARCIA): Yes.
Thus:
THE CHAIRMAN (SEN. TAÑADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .31
Thus, resort to the deliberations in Congress will readily reveal that the word "combination"
includes at least two different overt or criminal acts listed in R.A. No. 7080, such as
misappropriation (§1(d)(1)) and taking undue advantage of official position (§1(d)(6)). On the
other hand, "series" is used when the offender commits the same overt or criminal act more
than once. There is no plunder if only one act is proven, even if the ill-gotten wealth acquired
thereby amounts to or exceeds the figure fixed by the law for the offense (now
P50,000,000.00). The overt or criminal acts need not be joined or separated in space or time,
since the law does not make such a qualification. It is enough that the prosecution proves
that a public officer, by himself or in connivance with others, amasses wealth amounting to
at least P50 million by committing two or more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is the subject of
conflicting decisions of various Circuit Courts of Appeals in the United Sates. It turns out that
the decisions concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure
which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment
or information if they are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or offenses. Such defendants may
be charged in one or more counts together or separately and all of the defendants need not
be charged on each count. (Emphasis added)
The fact that there is a conflict in the rulings of the various courts does not mean that Rule
8(b) is void for being vague but only that the U.S. Supreme Court should step in, for one of its
essential functions is to assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It reads:
SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in one complaint, where any
question of law or fact common to all such plaintiffs or to all such defendants may arise in
the action; but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any proceedings in
which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never been thought of as
vague. It will not do, therefore, to cite the conflict of opinions in the United States as
evidence of the vagueness of the phrase when we do not have any conflict in this country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is not enough that there be at least two acts to constitute either a
combination or series because §4 also mentions "a pattern of overt or criminal acts indicative
of the overall scheme or conspiracy," and "pattern" means "an arrangement or order of
things or activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an unlawful scheme or
conspiracy." In such a case, it is not necessary to prove each and every criminal act done in
furtherance of the scheme or conspiracy so long as those proven show a pattern indicating
the scheme or conspiracy. In other words, when conspiracy is charged, there must be more
than a combination or series of two or more acts. There must be several acts showing a
pattern which is "indicative of the overall scheme or conspiracy." As Senate President
Salonga explained, if there are 150 constitutive crimes charged, it is not necessary to prove
beyond reasonable doubt all of them. If a pattern can be shown by proving, for example, 10
criminal acts, then that would be sufficient to secure conviction.32
The State is thereby enabled by this device to deal with several acts constituting separate
crimes as just one crime of plunder by allowing their prosecution by means of a single
information because there is a common purpose for committing them, namely, that of
"amassing, accumulating or acquiring wealth through such overt or criminal acts." The
pattern is the organizing principle that defines what otherwise would be discreet criminal
acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory
construction, not vagueness or overbreadth. In Primicias v. Fugoso,33 an ordinance of the City
of Manila, prohibiting the holding of parades and assemblies in streets and public places
unless a permit was first secured from the city mayor and penalizing its violation, was
construed to mean that it gave the city mayor only the power to specify the streets and
public places which can be used for the purpose but not the power to ban absolutely the use
of such places. A constitutional doubt was thus resolved through a limiting construction given
to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and
the Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of
the vagueness of the statute and, therefore, a ground for its invalidation. For sometime it
was thought that under Art. 134 of the Revised Penal Code convictions can be had for the
complex crime of rebellion with murder, arson, and other common crimes. The question was
finally resolved in 1956 when this Court held that there is no such complex crime because the
common crimes were absorbed in rebellion.34 The point is that Art. 134 gave rise to a
difference of opinion that nearly split the legal profession at the time, but no one thought
Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention is discoverable
with the aid of the canons of construction, the void for vagueness doctrine has no
application.
In Connally v. General Constr. Co.35 the test of vagueness was formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a bad man, who cares
only for the material consequences which such knowledge enables him to predict, not as a
good one, who finds his reasons for conduct, whether inside the law or outside of it, in the
vaguer sanctions of conscience.36
Whether from the point of view of a man of common intelligence or from that of a bad man,
there can be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA
Petitioner argues that, in enacting the statute in question, Congress eliminated the element
of mens rea, or the scienter, thus reducing the burden of evidence required for proving the
crimes which are mala in se.37
There are two points raised in this contention. First is the question whether the crime of
plunder is a malum in se or a malum prohibitum. For if it is a malum prohibitum, as the
Ombudsman and the Solicitor General say it is,38 then there is really a constitutional problem
because the predicate crimes are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive
crimes are mala in se the element of mens rea must be proven in a prosecution for plunder.
It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part
of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that
is the reason he claims the statute is void, petitioner cites the following remarks of Senator
Tañada made during the deliberation on S. No. 733:
SENATOR TAÑADA. . . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence sufficient to establish
the conspiracy or scheme to commit this crime of plunder. 39
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the
transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4,
Rule of Evidence, which, in the Gentleman’s view, would provide for a speedier and faster
process of attending to this kind of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40
Señator Tañada was only saying that where the charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal act done to further the scheme or
conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the elements of the crime must be proved
and the requisite mens rea must be shown.
Indeed, §2 provides that ¾
Any person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by
the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element
of plunder since the degree of responsibility of the offender is determined by his criminal
intent. It is true that §2 refers to "any person who participates with the said public officers in
the commission of an offense contributing to the crime of plunder." There is no reason to
believe, however, that it does not apply as well to the public officer as principal in the crime.
As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws
with what they omit, but there is no canon against using common sense in construing laws as
saying what they obviously mean."41
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to
have been resolved in the affirmative by the decision of Congress in 1993 to include it among
the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of
heinous crimes, this Court held in People v. Echagaray:42
The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal course of his or her growth as a penalty provided in the Anti-Plunder Law is grossly disproportionate to the penalties imposed
human being. . . . Seen in this light, the capital crimes of kidnapping and serious illegal for the predicate crimes. Petitioner cites the following examples:
detention for ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses For example, please consider the following ‘combination’ or ‘series’ of overt or criminal acts
involving minors or resulting in the death of the victim in the case of other crimes; as well as (assuming the P50 M minimum has been acquired) in light of the penalties laid down in the
murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the Penal Code:
victim is detained for more than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with
or intentional mutilation, destructive arson, and carnapping where the owner, driver or
prision correccional in its medium and maximum periods),
occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
– combined with –
There are crimes, however, in which the abomination lies in the significance and implications
of the subject criminal acts in the scheme of the larger socio-political and economic context one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal
in which the state finds itself to be struggling to develop and provide for its poor and Code with prision correccional in its medium period to prision mayor in its minimum period,
underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government must muster the - equals -
political will to dismantle the culture of corruption, dishonesty, greed and syndicated
criminality that so deeply entrenched itself in the structures of society and the psyche of the plunder (punished by reclusion perpetua to death plus forfeiture of assets under R.A. 7080)
populace. [With the government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with
survival of the people it governs over. Viewed in this context, no less heinous are the effects prision correccional in its minimum period or a fine ranging from P200 to P1,000 or both),
and repercussions of crimes like qualified bribery, destructive arson resulting in death, and
drug offenses involving government officials, employees or officers, that their perpetrators – combined with –
must not be allowed to cause further destruction and damage to society.
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is Code with prision correccional in its minimum period or a fine ranging from P200 to P6,000,
a malum in se. For when the acts punished are inherently immoral or inherently wrong, they or both),
are mala in se43 and it does not matter that such acts are punished in a special law, especially
since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be -equals-
absurd to treat prosecutions for plunder as though they are mere prosecutions for violations
of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without
plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080.
regard to the inherent wrongness of the acts.

c. One act of possession of prohibited interest by a public officer (penalized with prision
B. The Penalty for Plunder
correccional in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the
Revised Penal Code),
The second question is whether under the statute the prosecution is relieved of the duty of
proving beyond reasonable doubt the guilt of the defendant. It is contended that, in enacting
– combined with –
the Anti-Plunder Law, Congress simply combined several existing crimes into a single one but
the penalty which it provided for the commission of the crime is grossly disproportionate to
the crimes combined while the quantum of proof required to prove each predicate crime is one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the
greatly reduced. Revised penal Code with prision correccional in its minimum period, or a fine of P200 to
P1,000, or both,
We have already explained why, contrary to petitioner’s contention, the quantum of proof
required to prove the predicate crimes in plunder is the same as that required were they - equals -
separately prosecuted. We, therefore, limit this discussion to petitioner’s claim that the
plunder, punished by reclusion perpetua to death, and forfeiture of assets)44 statute as a whole should not be declared unconstitutional for overbreadth or vagueness of
its other provisions. Doing so, I come to the following conclusions:
But this is also the case whenever other special complex crimes are created out of two or
more existing crimes. For example, robbery with violence against or intimidation of persons 1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law,
under Art. 294, par. 5 of the Revised Penal Code is punished with prision correccional in its cannot be determined by applying the test of strict scrutiny in free speech cases
maximum period (4 years, 2 months, and 1 day) to prision mayor in its medium period (6 without disastrous consequences to the State’s effort to prosecute crimes and that,
years and 1 day to 8 years). Homicide under Art. 249 of the same Code is punished with contrary to petitioner’s contention, the statute must be presumed to be
reclusion temporal (12 years and 1 day to 20 years). But when the two crimes are committed constitutional;
on the same occasion, the law treats them as a special complex crime of robbery with
homicide and provides the penalty of reclusion perpetua to death for its commission. Again, 2. That in determining the constitutionality of the Anti-Plunder Law, its provisions
the penalty for simple rape under Art. 266-B of the Revised Penal Code is reclusion perpetua, must be considered in light of the particular acts alleged to have been committed
while that for homicide under Art. 249 it is reclusion temporal (12 years and 1 day to 20 by petitioner;
years). Yet, when committed on the same occasion, the two are treated as one special
complex crime of rape with homicide and punished with a heavier penalty of reclusion
3. That, as applied to petitioner, the statute is neither vague nor overbroad;
perpetua to death. Obviously, the legislature views plunder as a crime as serious as robbery
with homicide or rape with homicide by punishing it with the same penalty. As the
explanatory note accompanying S. No. 733 explains: 4. That, contrary to the contention of the Ombudsman and the Solicitor General,
the crime of plunder is a malum in se and not a malum prohibitum and the burden
of proving each and every predicate crime is on the prosecution.
Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic
treason, punishes the use of high office for personal enrichment, committed thru a series of
acts done not in the public eye but in stealth and secrecy over a period of time, that may For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the
involve so many persons, here and abroad, and which touch so many states and territorial petition should be dismissed.
units. The acts and/or omissions sought to be penalized do not involve simple cases of
malversation of public funds, bribery, extortion, theft and graft but constitute the plunder of
an entire nation resulting in material damage to the national economy. The above-described
crime does not yet exist in Philippine statute books. Thus, the need to come up with a
legislation as a safeguard against the possible recurrence of the depravities of the previous
regime and as a deterrent to those with similar inclination to succumb to the corrupting SEPARATE OPINION
influences of power.

(Concurring)
Many other examples drawn from the Revised Penal Code and from special laws may be
cited to show that, when special complex crimes are created out of existing crimes, the
penalty for the new crime is heavier. PANGANIBAN, J.:

______________________
To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no hesitation
examining it on its face on the chance that some of its provisions ¾ even though not here
before us ¾ are void. For then the risk that some state interest might be jeopardized, i.e., the
interest in the free flow of information or the prevention of "chill" on the freedom of
expression, would trump any marginal interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to
combat graft and corruption, especially those committed by highly-placed public officials. As
conduct and not speech is its object, the Court cannot take chances by examining other
provisions not before it without risking vital interests of society. Accordingly, such statute
must be examined only "as applied" to the defendant and, if found valid as to him, the
In his Petition for Certiorari under Rule 65 of the Rules of Court, former President Joseph
Ejercito Estrada seeks the annulment of the Sandiganbayan Resolution dated July 9, 2001,
which denied his Motion to Quash. He further prays to prohibit the anti-graft court from
conducting the trial of petitioner in Criminal Case No. 26558, on the ground that the statute
under which he has been charged – the Anti-Plunder Law or Republic Act (RA) 7080 -- is
unconstitutional.
In sum, he submits three main arguments to support his thesis, as follows:
1. "RA 7080 is vague and overbroad on its face and suffers from structural
deficiency and ambiguity."1
 2. "RA 7080 reduces the standard of proof necessary for criminal conviction, and
dispenses with proof beyond reasonable doubt of each and every criminal act done
in furtherance of the crime of plunder."2
3. "RA 7080 has been admitted by respondent to be malum prohibita which
deprives petitioner of a basic defense in violation of due process." 3
I have read former President Estrada’s Petition, Reply, Memorandum and other pleadings
and listened carefully to his Oral Argument. However, I cannot agree with his thesis, for the
following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is clear and specific
especially on what it seeks to prohibit and to penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof necessary to convict
its violator -- in this case, petitioner.
(3) Congress has the constitutional power to enact laws that are mala prohibita
and, in exercising such power, does not violate due process of law.
First Issue: "Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and ambiguous, for
"wanting in its essential terms," and for failing to "define what degree of participation means
as [it] relates to the person or persons charged with having participated with a public officer
in the commission of plunder."4
In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this Court debunked the
"void for vagueness" challenge to the constitutionality of Section 3(g) of the Anti-Graft Law
(RA 3019, as amended) and laid down the test to determine whether a statute is vague. It has
decreed that as long as a penal law can answer the basic query "What is the violation?," it is
constitutional. "Anything beyond this, the ‘hows’ and the ‘whys,’ are evidentiary matters
which the law cannot possibly disclose in view of the uniqueness of every case x x x."
Elements of Plunder
The Anti-Plunder Law more than adequately answers the question "What is the violation?"
Indeed, to answer this question, any law student -- using basic knowledge of criminal law --
will refer to the elements of the crime, which in this case are plainly and certainly spelled out
in a straightforward manner in Sections 2 and 1(d) thereof. Those elements are:
1. The offender is a public officer acting by himself or in connivance with members
of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons.
2. The offender amasses, accumulates or acquires ill-gotten wealth.
3. The aggregate amount or total value of the ill-gotten wealth so amassed,
accumulated or acquired is at least fifty million pesos (₱50,000,000).
4. Such ill-gotten wealth -- defined as any asset, property, business enterprise or
material possession of any of the aforesaid persons (the persons within the
purview of Section 2, RA 7080) -- has been acquired directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
(i) through misappropriation, conversion, misuse or malversation of
public funds or raids on the public treasury;
(ii) by receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer
concerned;
(iii) by the illegal or fraudulent conveyance or disposition of assets
belonging to the national government or any of its subdivisions, agencies
or instrumentalities or government-owned or controlled corporations
and their subsidiaries;
(iv) by obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking;
(v) by establishing agricultural, industrial or commercial monopolies or
other combination and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or
(vi) by taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of the elements of the
crime, there is still vagueness because of the absence of definitions of the terms
combination, series and pattern in the text of the law.
Citing People v. Nazario,8 petitioner adds that "a statute or act may be said to be vague when
it lacks comprehensible standards that men of common intelligence must necessarily guess
at its meaning and differ as to its application."
I say, however, that in that very case cited by petitioner, the Court cautioned that "the act (or
law) must be utterly vague on its face." When it can be "clarified either by a saving clause or
by construction," the law cannot be decreed as invalid. In other words, the absence of
statutory definitions of words used in a statute will not render the law "void for vagueness,"
if the meanings of such words can be determined through the judicial function of
construction.9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of unconstitutionality, is the key to
the allegedly vague words of the Anti-Plunder Law. And the most basic rule in statutory
construction is to ascertain the meaning of a term from the legislative proceedings. Verily, in
the judicial review of a law’s meaning, the legislative intent is paramount.10
Pervading the deliberations of the Bicameral Conference Committee on Justice held on May
7, 1991 was the common understanding of combination as a joining or combining of at least
two dissimilar things or acts, and series as a repetition or recurrence of the same thing at
least twice.11 As a matter of fact, the same understanding of those terms also prevailed
during the Senate deliberations on Senate Bill No. 733 (Plunder) earlier held on June 6,
1989.12 The Records of those deliberations speak for themselves.
It is true that during the deliberations in the Senate, the late Senator Neptali A. Gonzales
initially raised concerns over the alleged vagueness in the use of the terms combination and
series. I respectfully submit, however, that the reliance13 of petitioner on such concerns is
misplaced. That portion of the interpellations, evincing the late senator’s reservations on the
matter, had taken place during the session of June 5, 1989.14 And the clarificatory remarks of
Senate President Jovito R. Salonga and Senators Wigberto Tañada, Alberto Romulo and
Ernesto Maceda, which threw light on the matters in doubt, happened the following day,
June 6, 1989.15 In brief, the misgivings voiced by Senator Gonzales as to the use of the two
terms were adequately addressed, answered and disposed of the following day.
Thus, Senate Bill No. 733, defining and penalizing plunder, was passed and approved on third
reading on July 25, 1989, with 19 affirmative votes (including those of Senators Gonzales,
Tañada, Maceda, and petitioner himself) sans any negative vote or abstention. Indeed, some
of the sharpest legal minds in the country voted to approve the bill, even though it was
bereft of statutory definitions. Likewise, it would certainly be inconceivable for Senator
Gonzales to have voted for the approval of the Bill had he believed that it was vague to the
point of constitutional infirmity; or at the very least, if he believed that his earlier
reservations or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint Conference Meeting held on
May 7, 1991.16 The portion thereof relied upon by petitioner17 features the exchanges
involving Representatives Garcia and Isidro and Senator Tañada on the meanings of the
terms combination and series. The quoted part of the Record would suggest that, somehow,
particularly towards the end of the meeting, the discussion among the legislators seemed to
have degenerated into a clutch of unfinished sentences and unintelligible phrases. Still, I
believe that the deliberations did not actually sound the way they were subsequently
transcribed or as they now appear on the Record. Even more reluctant am I to agree with
petitioner that the apparent tenor of the deliberations evinced "a dearth of focus to render
precise the definition of the terms," or that the Committee members themselves were not
clear on the meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of stenographic note-
taking, especially in courtrooms and legislative halls. Too often, lawyers, parties-litigants and
even judges find themselves at the mercy of stenographers who are unfamiliar with certain
legal terms; or who cannot hear well enough or take notes fast enough; or who simply get
confused, particularly when two or more persons happen to be speaking at the same time.
Often, transcripts of stenographic notes have portrayed lawyers, witnesses, legislators and
judges as blithering idiots, spouting utterly nonsensical jargon and plain inanities in the
course of a proceeding. The Record in question is no exception.
Rather than believe that the distinguished lawmakers went about their business uttering
senseless half-sentences to one another, I think that these learned and intelligent legislators
of both chambers knew what they were talking about, spoke their minds, and understood
each other well, for the Record itself does not indicate the contrary. Neither does it show any
details or minutiae that would indicate that they abandoned their earlier common
understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner’s disquisition to the effect that
"when penal laws enacted by Congress make reference to a term or concept requiring a
quantitative definition, these laws are so crafted as to specifically state the exact number or
percentage necessary to constitute the elements of a crime," followed by a recitation of the
minimum number of malefactors mentioned in the statutory definitions of band, conspiracy,
illegal recruitment by syndicate, large-scale illegal recruitment, organized/syndicated crime
group, and swindling by a syndicate. Thus, he insinuates that, because RA 7080 has failed to
specify precisely the minimum number of malefactors needed for an offense to be properly
classified as plunder, the law is vague or has somehow failed to meet the standard for penal
laws.
The aforequoted discourse would appear to be incongruous, if not totally misleading. As
pointed out during the Oral Argument on September 18, 2001, the crime of plunder can be
committed by a public officer acting alone. Section 2 of RA 7080 reads as follows: "Definition
of the Crime of Plunder; Penalties. – Any public officer who, by himself or in connivance with
x x x." Thus, the insistence on a mathematical specification or precise quantification is
essentially without basis. And lest anyone believe that the Anti-Plunder Law is unusual in this
respect, let me just recall that the RICO law, to which petitioner made repeated references in
his Amended Petition, can likewise be violated by a single individual.18
Not Oppressive
or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe
penalty on a combination or series of the offenses enumerated in Section 1(d) of the law,
than would otherwise be imposed if the said offenses were taken separately. As Mr. Justice
Mendoza lucidly pointed out in his interpellation during the Oral Argument, the Anti-Plunder
Law is merely employing a familiar technique or feature of penal statutes, when it puts
together what would otherwise be various combinations of traditional offenses already
proscribed by existing laws and attaching thereto higher or more severe penalties than those
prescribed for the same offenses taken separately.
Here, Mr. Justice Mendoza is referring to special complex crimes like rape with homicide or
robbery with homicide. During the Oral Argument, he asked whether petitioner’s counsel
was in fact suggesting that such special complex crimes -- a very important part of the
Revised Penal Code and well-entrenched in our penal system -- were violative of due process
and the constitutional guarantees against cruel and unusual punishment and should also be
struck down. It goes without saying that the legislature is well within its powers to provide
higher penalties in view of the grave evils sought to be prevented by RA 7080.
Innocent Acts Not
Penalized by RA 7080
Petitioner insists that innocent acts are in effect criminalized by RA 7080, because it allegedly
penalizes combinations or series of acts coming within the purview of the means or similar
schemes enumerated under items 4 and 5 of Section 1(d) of the law, which reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or
any other forms of interest or participation including the promise of future employment in
any business enterprise or undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or
special interests"
That such contention "deserves scant attention" is an understatement of the extreme sort.
The claim of "innocent acts" is possible only because items 4 and 5 have been taken
completely out of context and read in isolation instead of in relation to the other provisions
of the same law, particularly Section 2. The above-enumerated acts, means or similar
schemes must be understood as having reference to or connection with the acquisition of ill-
gotten wealth by a public officer, by himself or in connivance with others. Those acts are
therefore not innocent acts. Neither are those prohibitions new or unfamiliar. The proscribed
acts under item 4, for instance, may to some extent be traced back to some of the
prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the pertinent part of such law, reads
as follows:
"SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
"(a) x x x x x x x x x
"(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or
benefit, for himself or for any other person, in connection with any contract or transaction
between the Government and any other party wherein the public officer in his official
capacity has to intervene under the law.
"(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or
material benefit, for himself or for another, from any person for whom the public officer, in
any manner or capacity, has secured or obtained, or will secure or obtain, any Government
permit or license, in consideration for the help given or to be given, without prejudice to
Section Thirteen of this Act.
"(d) Accepting or having any member of his family accept employment in a private enterprise
which has pending official business with him during the pendency thereof or within one year
after its termination.
xxx xxx xxx
"(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.
x x x x x x x x x."
On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal
Code’s interdiction against monopolies and combinations in restraint of trade. Clearly, the
acts dealt with in Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous
deeds that petitioner would have us mistake them for.
RA 7080 Not Suffering from Overbreadth
In connection with the foregoing discussion, petitioner also charges that RA 7080 suffers
from "overbreadth." I believe petitioner misconstrues the concept. In the very recent case
People v. Dela Piedra,19 this Court held:
"A statute may be said to be overbroad where it operates to inhibit the exercise of individual
freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or
religion. A generally worded statute, when construed to punish conduct which cannot be
constitutionally punished, is unconstitutionally vague to the extent that it fails to give
adequate warning of the boundary between the constitutionally permissible and the
constitutionally impermissible applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we struck down as void for
overbreadth provisions prohibiting the posting of election propaganda in any place –
including private vehicles – other than in the common poster areas sanctioned by the
COMELEC. We held that the challenged provisions not only deprived the owner of the vehicle
the use of his property but also deprived the citizen of his right to free speech and
information. The prohibition in Adiong, therefore, was so broad that it covered even
constitutionally guaranteed rights and, hence, void for overbreadth. In the present case,
however, appellant did not even specify what constitutionally protected freedoms are
embraced by the definition of ‘recruitment and placement’ that would render the same
constitutionally overbroad." (Italics supplied)
Similarly, in the instant case, petitioner has not identified which of his constitutionally
protected freedoms, if any, are allegedly being violated by the Anti-Plunder Law. As Mr.
Justice Mendoza pointed out to petitioner’s counsel during the Oral Argument, specious and
even frivolous is the contention that RA 7080 infringes on the constitutional right of
petitioner by depriving him of his liberty pending trial and by paving the way for his possible
conviction because, following that line of argument, the entire Revised Penal Code would be
reckoned to be an infringement of constitutional rights.
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his "void for vagueness" attack on RA 7080, faults the statute for
failing to provide a definition of the phrase a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy used in Section 4 of the law. This definition is crucial
since, according to him, such pattern is an essential element of the crime of plunder.
A plain reading of the law easily debunks this contention. First, contrary to petitioner’s
suggestions, such pattern of overt or criminal acts and so on is not and should not be
deemed an essential or substantive element of the crime of plunder. It is possible to give full
force and effect to RA 7080 without applying Section 4 -- an accused can be charged and
convicted under the Anti-Plunder Law without resorting to that specific provision. After all,
the heading and the text of Section 4, which I quote below, leave no room for doubt that it is
not substantive in nature:
"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy." (Boldface supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral Argument, Section 2 in
relation to Section 1(d) deals with how the crime of plunder is committed. Hence, these two
sections constitute the substantive elements, whereas Section 4 deals with how the crime is
proved and is therefore not substantive, but merely procedural. It may be disregarded or
discarded if found defective or deficient, without impairing the rest of the statute.
Actually, the root of this problem may be traced to an observation made by Rep. Pablo
Garcia, chair of the House Committee on Justice, that RA 7080 had been patterned after the
RICO Law.20 Petitioner apparently seized on this statement and on the assertions in H.J. Inc.
v. Northwestern Bell21 and other cases that a pattern of racketeering is a "key requirement"
in the RICO Law and a "necessary element" of violations thereof. He then used these as the
springboard for his vagueness attacks on RA 7080. However, his reliance on the RICO law is
essentially misplaced. Respondent Sandiganbayan correctly held that the said legislation was
essentially different from our Anti-Plunder Law, as it pointed out in its Resolution of July 9,
2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not define ‘pattern of
overt or criminal acts’ indicative of the overall scheme or conspiracy, thereby giving
prosecutors and judges unlimited discretion to determine the nature and extent of evidence
that would show ‘pattern.’" (Motion to Quash dated June 7, 2001, p. 13) The Court disagrees
with this contention.
"x x x. According to the sponsors of the Anti-Plunder Law in Congress, the said law is similar
to the U.S. RICO (Deliberations of the House of Representatives Committee on Revision of
Law and Justice, May 24, 1990). However, the similarities extend only insofar as both laws
penalize with severe penalties the commission by a single accused or multiple accused of a
pattern of overt or criminal acts as one continuing crime. However, the legislative policies
and objectives as well as the nature of the crimes penalized respectively by the RICO and the
Anti-Plunder Law are different." (Boldface and underscoring supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other conclusion than that
the crimes being penalized are completely different in nature and character, and that the
legislative objectives and policies involved are quite dissimilar.
In the case of RICO, legislative concern focused on the threat of continued racketeering
activity, and that was why pattern was imbued with such importance. "Congress was
concerned in RICO with long-term criminal conduct,"22 as the following quote indicates:
"RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering
activity a plaintiff or prosecutor must show that the racketeering predicates are related, and
that they amount to or pose a threat of continued criminal activity.23
xxx xxx xxx
"What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its threat,
simpliciter. This may be done in a variety of ways, thus making it difficult to formulate in the
abstract any general test for continuity. We can, however, begin to delineate the
requirement.
"‘Continuity’ is both a closed and open-ended concept, referring either to a closed period of
repeated conduct, or to past conduct that by its nature projects into the future with a threat
of repetition. x x x. It is, in either case, centrally a temporal concept – and particularly so in
the RICO context, where what must be continuous, RICO’s predicate acts or offenses, and the
relationship these predicates must bear one to another, are distinct requirements. A party
alleging a RICO violation may demonstrate continuity over a closed period by proving a series
of related predicates extending over a substantial period of time. Predicate acts extending
over a few weeks or months and threatening no future criminal conduct do not satisfy this
requirement. Congress was concerned in RICO with long-term criminal conduct. Often a RICO
action will be brought before continuity can be established in this way. In such cases, liability
depends on whether the threat of continuity is demonstrated."24 (italics and underscoring
supplied)
However, in RA 7080, precisely because of the sheer magnitude of the crimes in question and
their extremely deleterious effects on society, the legislative sentiment of great urgency –
the necessity of immediate deterrence of such crimes -- was incompatible with the RICO
concept of "pattern" as connoting either continuity over a substantial period of time or threat
of continuity or repetition. The legislative intent25 and policy of RA 7080 centered on
imposing a heavy penalty in order to achieve a strong, if not permanent, deterrent effect --
the sooner the better. The following Senate deliberations are instructive:
"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for trying to define a
crime of plunder. Could I get some further clarification?
"Senator Tañada. Yes, Mr. President.
"Because of our experience in the former regime, we feel that there is a need for Congress to
pass the legislation which would cover a crime of this magnitude. While it is true, we already
have the Anti-Graft Law. But that does not directly deal with plunder. That covers only the
corrupt practices of public officials as well as their spouses and relatives within the civil
degree, and the Anti-Graft law as presently worded would not adequately or sufficiently
address the problems that we experienced during the past regime.
"Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the
bill?
"Senator Tañada. Yes.
"Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered
interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act
when, after the different acts are looked at, a scheme or conspiracy can be detected, such
scheme or conspiracy consummated by the different criminal acts or violations of Anti-Graft
and Corrupt Practices Act, such that the scheme or conspiracy becomes a sin, as a large
scheme to defraud the public or rob the public treasury. It is parang robo and banda. It is
considered as that. And, the bill seeks to define or says that P100 million is that level at which
ay talagang sobra na, dapat nang parusahan ng husto. Would it be a correct interpretation or
assessment of the intent of the bill?
"Senator Tañada. Yes, Mr. President. X x x x x.
"Senator Paterno. Would the Author not agree that this crime of plunder should be
considered a heinous crime, Mr. President?
"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed under this bill is life
imprisonment, and permanent disqualification from holding public office.
"Senator Paterno. I would really ask, Mr. President, whether the Author would not consider
that this is a heinous crime which, for compelling reasons, namely to try and dampen the
graft and corruption, Congress should provide the death penalty for the crime of plunder.
"Senator Tañada. I personally would have some problem with that, Mr. President, because I
am against the restoration of death penalty in our criminal code. I would submit that to this
Body.
"Senator Paterno. I respect the ministerial attitude and the respect for human life of the
author, Mr. President, but I just feel that graft and corruption is such a large problem in our
society that, perhaps, it is necessary for this Congress to express itself that this crime of
plunder is a heinous crime which should be levied the death penalty, Mr. President."26
Thus, it is clear and unarguable that "pattern," a key requirement or necessary element of
RICO, is in no wise an essential element of RA 7080.
This conclusion is further bolstered by the fact that pattern, in the RICO law context, is
nowhere to be found in the language of RA 7080 or in the deliberations of Congress. Indeed,
the legislators were well aware of the RICO Act; hence, they could have opted to adopt its
concepts, terms and definitions and installed pattern in the RICO sense as an essential
element of the crime of plunder, if that were their intent. At the very least, they would not
have relegated the term pattern to a procedural provision such as Section 4.
Second, to answer petitioner’s contention directly, the Anti-Plunder Law does in fact provide
sufficient basis to get at the meaning of the term pattern as used in Section 4. This meaning
is brought out in the disquisition of Respondent Sandiganbayan in its challenged Resolution,
reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law, specifically through
Section 4 x x x, read in relation to Section 1(d) and Section 2 of the same law. Firstly, under
Section 1(d) x x x, a pattern consists of at least a combination or a series of overt or criminal
acts enumerated in subsections (1) to (6) of Section 1(d). Secondly, pursuant to Section 2 of
the law, the ‘pattern’ of overt or criminal acts is directed towards a common purpose or goal
which is to enable a public officer to amass, accumulate or acquire ill-gotten wealth; and
[t]hirdly, there must either be an ‘overall unlawful scheme’ or ‘conspiracy’ to achieve said
common goal. As commonly understood, the term ‘overall unlawful scheme’ indicates ‘a
general plan of action or method’ which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In the alternative, if there
is no such overall scheme or where the schemes or methods used by multiple accused vary,
the overt or criminal acts must form part of a conspiracy to attain said common goal.
"Parenthetically, it can be said that the existence of a pattern indicating an overall scheme or
a single conspiracy would serve as the link that will tie the overt or criminal acts into one
continuing crime of plunder. A conspiracy exists when two or more persons come into an
agreement concerning the commission of a felony and decide to commit it. (Art. 8, Revised
Penal Code). To use an analogy made by U.S. courts in connection with RICO violations, a
pattern may be likened to a wheel with spokes (the overt or criminal acts which may be
committed by a single or multiple accused), meeting at a common center (the acquisition or
accumulation of ill-gotten wealth by a public officer) and with the rim (the over-all unlawful
scheme or conspiracy) of the wheel enclosing the spokes. In this case, the information
charges only one count of [the] crime of plunder, considering the prosecution’s allegation in
the amended information that the series or combination of overt or criminal acts charged
form part of a conspiracy among all the accused."27
Judiciary Empowered to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially judicial. To declare
what the law shall be is a legislative power, but to declare what the law is or has been is
judicial.28 Statutes enacted by Congress cannot be expected to spell out with mathematical
precision how the law should be interpreted under any and all given situations. The
application of the law will depend on the facts and circumstances as adduced by evidence
which will then be considered, weighed and evaluated by the courts. Indeed, it is the
constitutionally mandated function of the courts to interpret, construe and apply the law as
would give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be achieved and the
evil or mischief to be suppressed and should be given such construction as will advance the
purpose, suppress the mischief or evil, and secure the benefits intended.29 A law is not a
mere composition, but an end to be achieved; and its general purpose is a more important
aid to its meaning than any rule that grammar may lay down.30 A construction should be
rejected if it 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 that are sought
to be attained by its enactment.31
As can be gleaned from the legislative deliberations, the Plunder Law was enacted to curb
the "despoliation of the National Treasury by some public officials who have held the levers
of power" and to penalize "this predatory act which has reached unprecedented heights and
has been developed by its practitioners to a high level of sophistication during the past
dictatorial regime." Viewed broadly, "plunder involves not just plain thievery but economic
depredation which affects not just private parties or personal interests but the nation as a
whole." Invariably, plunder partakes of the nature of "a crime against national interest which
must be stopped, and if possible, stopped permanently."32
No Patent and Clear Conflict with Constitution
Against the foregoing backdrop, I believe petitioner’s heavy reliance on the void-for-
vagueness concept cannot prevail, considering that such concept, while mentioned in passing
in Nazario and other cases, has yet to find direct application in our jurisdiction. To this date,
the Court has not declared any penal law unconstitutional on the ground of ambiguity.33 On
the other hand, the constitutionality of certain penal statutes has been upheld in several
cases, notwithstanding allegations of ambiguity in the provisions of law. In Caram Resources
Corp. v. Contreras34 and People v. Morato,35 the Court upheld the validity of BP 22 (Bouncing
Checks Law) and PD 1866 (Illegal Possession of Firearms), respectively, despite constitutional
challenges grounded on alleged ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court decisions relative to the
RICO Law did not at all arrive at a finding of unconstitutionality of the questioned statute. To
repeat, reference to these U.S. cases is utterly misplaced, considering the substantial
differences in the nature, policies and objectives between the RICO Law and the Anti-Plunder
Law. Verily, "the RICO Law does not create a new type of substantive crime since any acts
which are punishable under the RICO Law also are punishable under existing federal and
state statutes."36 Moreover, the main purpose of the RICO Law is "to seek the eradication of
organized crime in the United States."37
On the other hand, the Plunder Law creates an entirely new crime that may consist of both
(a) criminal acts already punished by the Revised Penal Code or special laws and (b) acts that
may not be punishable by previously existing laws. Furthermore, unlike in the RICO Law, the
motivation behind the enactment of the Anti-Plunder Law is "the need to for a penal law that
can adequately cope with the nature and magnitude of the corruption of the previous
regime"38 in accordance with the constitutional duty of the State "to take positive and
effective measures against graft and corruption."39
In sum, the law must be proven to be clearly and unequivocally repugnant to the
Constitution before this Court may declare its unconstitutionality. To strike down the law,
there must be a clear showing that what the fundamental law prohibits, the statute allows to
be done.40 To justify the nullification of the law, there must be a clear, unequivocal breach of
the Constitution; not a doubtful, argumentative implication.41 Of some terms in the law
which are easily clarified by judicial construction, petitioner has, at best, managed merely to
point out alleged ambiguities. Far from establishing, by clear and unmistakable terms, any
patent and glaring conflict with the Constitution, the constitutional challenge to the Anti-
Plunder law must fail. For just as the accused is entitled to the presumption of innocence in
the absence of proof beyond reasonable doubt, so must a law be accorded the presumption
of constitutionality without the same requisite quantum of proof.
Second Issue:
Quantum of Evidence Not Lowered by RA 7080
I will now tackle petitioner’s impassioned asseverations that the Anti-Plunder Law violates
the due process clause and the constitutional presumption of innocence.
Section 4 of RA 7080 provides that, for purposes of establishing the crime of plunder, it shall
not be necessary to prove each and every criminal act done by the accused in furtherance of
the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. This is because
it would be sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates proof of each and
every component criminal act of plunder by the accused and limits itself to establishing just
the pattern of overt or criminal acts indicative of unlawful scheme or conspiracy." He thus
claims that the statute penalizes the accused on the basis of a proven scheme or conspiracy
to commit plunder, without the necessity of establishing beyond reasonable doubt each and
every criminal act done by the accused. From these premises, he precipitately, albeit
inaccurately, concludes that RA 7080 has ipso facto lowered the quantum of evidence
required to secure a conviction under the challenged law. This is clearly erroneous.
First, petitioner’s allegation as to the meaning and implications of Section 4 can hardly be
taken seriously, because it runs counter to certain basic common sense presumptions that
apply to the process of interpreting statutes: that in the absence of evidence to the contrary,
it will be presumed that the legislature intended to enact a valid, sensible and just law; that
the law-making body intended right and justice to prevail;42 and that the legislature aimed to
impart to its enactments such meaning as would render them operative and effective and
prevent persons from eluding or defeating them.
Second, petitioner’s allegation is contradicted by the legislative Records that manifest the
real intent behind Section 4, as well as the true meaning and purpose of the provision
therein. This intent is carefully expressed by the words of Senate President Salonga:
"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all, criminal acts, whether
bribery, misappropriation, malversation, extortion, you need not prove all of those beyond
reasonable doubt. If you can prove by pattern, let’s say 10, but each must be proved beyond
reasonable doubt, you do not have to prove 150 crimes. That’s the meaning of this."43 (italics
supplied)
All told, the above explanation is in consonance with what is often perceived to be the reality
with respect to the crime of plunder -- that "the actual extent of the crime may not, in its
breadth and entirety, be discovered, by reason of the ‘stealth and secrecy’ in which it is
committed and the involvement of ‘so many persons here and abroad and [the fact that it]
touches so many states and territorial units.’"44 Hence, establishing a pattern indicative of
the overall unlawful scheme becomes relevant and important.
Proof of Pattern Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be proven beyond
reasonable doubt. To my mind, this means that the prosecution’s burden of proving the
crime of plunder is, in actuality, much greater than in an ordinary criminal case. The
prosecution, in establishing a pattern of overt or criminal acts, must necessarily show a
combination or series of acts within the purview of Section 1(d) of the law.
These acts which constitute the combination or series must still be proven beyond reasonable
doubt. On top of that, the prosecution must establish beyond reasonable doubt such pattern
of overt or criminal acts indicative of the overall scheme or conspiracy, as well as all the
other elements thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that point:
"The accused misread the import and meaning of the above-quoted provision (Sec. 4). The
latter did not lower the quantum of evidence necessary to prove all the elements of plunder,
which still remains proof beyond reasonable doubt. For a clearer understanding of the
import of Section 4 of the Anti-Plunder Law, quoted hereunder are pertinent portions of the
legislative deliberations on the subject:
‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged
in the information must be proven beyond reasonable doubt. If we will prove only one act
and find him guilty of the other acts enumerated in the information, does that not work
against the right of the accused especially so if the amount committed, say, by falsification is
less than P100 million, but the totality of the crime committed is P100 million since there is
malversation, bribery, falsification of public document, coercion, theft?
‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the information needs to be proved
beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every
element of the crime charged. For example, Mr. Speaker, there is an enumeration of the
things taken by the robber in the information – three pairs of pants, pieces of jewelry. These
need not be proved beyond reasonable doubt, but these will not prevent the conviction of a
crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the
prosecution proved only two. Now, what is required to be proved beyond reasonable doubt
is the element of the offense.
‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in the crime of plunder
the totality of the amount is very important, I feel that such a series of overt (or) criminal acts
has to be taken singly. For instance, in the act of bribery, he was able to accumulate only
₱50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when
we add the totality of the other acts as required under this bill through the interpretation on
the rule of evidence, it is just one single act, so how can we now convict him?
‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of proving an essential
element of the crime, there is a need to prove that element beyond reasonable doubt. For
example, one essential element of the crime is that the amount involved is P100 million.
Now, in a series of defalcations and other acts of corruption and in the enumeration the total
amount would be P110 or P120 million, but there are certain acts that could not be proved,
so, we will sum up the amounts involved in these transactions which were proved. Now, if
the amount involved in these transactions, proved beyond reasonable doubt, is P100 million,
then there is a crime of plunder.’ (Deliberations of House of Representatives on RA 7080,
dated October 9, 1990).’
xxx xxx xxx
"According to the Explanatory Note of Senate Bill No. 733, the crime of plunder, which is a
‘term chosen from other equally apt terminologies like kleptocracy and economic treason,
punishes the use of high office for personal enrichment, committed through a series [or
combination] of acts done not in the public eye but in stealth or secrecy over a period of
time, that may involve so many persons, here and abroad, and which touch so many states
and territorial units.’ For this reason, it would be unreasonable to require the prosecution to
prove all the overt and criminal acts committed by the accused as part of an ‘over-all
unlawful scheme or conspiracy’ to amass ill-gotten wealth as long as all the elements of the
crime of plunder have been proven beyond reasonable doubt, such as, the combination or
series of overt or criminal acts committed by a public officer alone or in connivance with
other persons to accumulate ill-gotten wealth in the amount of at least Fifty Million Pesos.
"The statutory language does not evince an intent to do away with the constitutional
presumption of guilt nor to lower the quantum of proof needed to establish each and every
element or ingredient of the crime of plunder."45
In connection with the foregoing, I emphasize that there is no basis for petitioner’s concern
that the conspiracy to defraud, which is not punishable under the Revised Penal Code, may
have been criminalized under RA 7080. The Anti-Plunder Law treats conspiracy as merely a
mode of incurring criminal liability, but does not criminalize or penalize it per se.
In sum, it is clear that petitioner has misunderstood the import of Section 4. Apropos the
foregoing, I maintain that, between an interpretation that produces questionable or absurd
results and one that gives life to the law, the choice for this Court is too obvious to require
much elucidation or debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers from some
constitutional infirmity, the statute may nonetheless survive the challenge of
constitutionality in its entirety. Considering that this provision pertains only to a rule on
evidence or to a procedural matter that does not bear upon or form any part of the elements
of the crime of plunder, the Court may declare the same unconstitutional and strike it off the
statute without necessarily affecting the essence of the legislative enactment. For even
without the assailed provision, the law can still stand as a valid penal statute inasmuch as the
elements of the crime, as well as the penalties therein, may still be clearly identified or
sufficiently derived from the remaining valid portions of the law. This finds greater
significance when one considers that Section 7 of the law provides for a separability clause
declaring the validity, the independence and the applicability of the other remaining
provisions, should any other provision of the law be held invalid or unconstitutional.
Third Issue:
The Constitutional Power of Congress to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens rea from crimes which
are mala in se and converted these crimes which are components of plunder into mala
prohibita, thereby rendering it easier to prove" since, allegedly, "the prosecution need not
prove criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one, as already discussed
above) that the Anti-Plunder Law exempts the prosecution from proving beyond reasonable
doubt the component acts constituting plunder, including the element of criminal intent. It
thus concludes that RA 7080 violates the due process and the equal protection clauses of the
Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens rea from the
component crimes of plunder, my bottom-line position still is: regardless of whether plunder
is classified as mala prohibita or in se, it is the prerogative of the legislature -- which is
undeniably vested with the authority -- to determine whether certain acts are criminal
irrespective of the actual intent of the perpetrator.
The Power of the Legislature to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong Bieng46 has consistently
recognized and upheld "the power of the legislature, on grounds of public policy and
compelled by necessity, ‘the great master of things,’ to forbid in a limited class of cases the
doing of certain acts, and to make their commission criminal without regard to the intent of
the doer." Even earlier, in United States v. Go Chico,47 Justice Moreland wrote that the
legislature may enact criminal laws that penalize certain acts, like the "discharge of a loaded
gun," without regard for the criminal intent of the wrongdoer. In his words:
"In the opinion of this Court it is not necessary that the appellant should have acted with
criminal intent. In many crimes, made such by statutory enactment, the intention of the
person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the
statute as a deterrent influence would be substantially worthless. It would be impossible of
execution. In many cases the act complained of is itself that which produces the pernicious
effect which the statute seeks to avoid. In those cases the pernicious effect is produced with
precisely the same force and result whether the intention of the person performing the act is
good or bad. The case at bar is a perfect illustration of this. The display of a flag or emblem
used, particularly within a recent period, by the enemies of the Government tends to incite
resistance to governmental functions and insurrection against governmental authority just as
effectively if made in the best of good faith as if made with the most corrupt intent. The
display itself, without the intervention of any other factor, is the evil. It is quite different from
that large class of crimes, made such by the common law or by statute, in which the injurious
effect upon the public depends upon the corrupt intention of the person perpetrating the
act. If A discharges a loaded gun and kills B, the interest which society has in the act depends,
not upon B’s death, but upon the intention with which A consummated the act. If the gun
were discharged intentionally, with the purpose of accomplishing the death of B, then society
has been injured and its security violated; but if the gun was discharged accidentally on the
part of A, the society, strictly speaking, has no concern in the matter, even though the death
of B results. The reason for this is that A does not become a danger to society and its
institutions until he becomes a person with a corrupt mind. The mere discharge of the gun
and the death of B do not of themselves make him so. With those two facts must go the
corrupt intent to kill. In the case at bar, however, the evil to society and to the Government
does not depend upon the state of mind of the one who displays the banner, but upon the
effect which that display has upon the public mind. In the one case the public is affected by
the intention of the actor; in the other by the act itself."
Without being facetious, may I say that, unlike the act of discharging a gun, the acts
mentioned in Section 1(d) -- bribery, conversion, fraudulent conveyance, unjust enrichment
and the like -- cannot be committed sans criminal intent. And thus, I finally arrive at a point
of agreement with petitioner: that the acts enumerated in Section 1(d) are by their nature
mala in se, and most of them are in fact defined and penalized as such by the Revised Penal
Code. Having said that, I join the view that when we speak of plunder, we are referring
essentially to two or more instances of mala in se constituting one malum prohibitum. Thus,
there should be no difficulty if each of the predicate acts be proven beyond reasonable doubt
as mala in se, even if the defense of lack of intent be taken away as the solicitor general has
suggested.
In brief, the matter of classification is not really significant, contrary to what petitioner would
have us believe. The key, obviously, is whether the same burden of proof -- proof beyond
reasonable doubt -- would apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is conceded that the
legislature possesses the requisite power and authority to declare, by legal fiat, that acts not
inherently criminal in nature are punishable as offenses under special laws, then with more
reason can it punish as offenses under special laws those acts that are already inherently
criminal. "This is so because the greater (power to punish not inherently criminal acts)
includes the lesser (power to punish inherently criminal acts). In eo plus sit, semper inest et
minus."48
for him, was "too stupid and incompetent to appreciate its quality." This is no doubt a parody
of the alleged vagueness of RA 7080, which is purportedly "invisible only to anyone who is
too dull or dense to appreciate its quality."50
I do not begrudge petitioner (or his lawyers) for exhausting every known and knowable legal
tactic to exculpate himself from the clutches of the law. Neither do I blame the solicitor
general, as the Republic’s counsel, for belittling the attempt of petitioner to shortcut his
difficult legal dilemmas. However, this Court has a pressing legal duty to discharge: to render
justice though the heavens may fall.
By the Court’s Decision, petitioner is now given the occasion to face squarely and on the
merits the plunder charges hurled at him by the Ombudsman. He may now use this
opportunity to show the courts and the Filipino people that he is indeed innocent of the
heinous crime of plunder – to do so, not by resorting to mere legalisms, but by showing the
sheer falsity of the wrongdoings attributed to him.
I think that, given his repeated claims of innocence, petitioner owes that opportunity to
himself, his family, and the teeming masses he claims to love. In short, the Court has
rendered its judgment, and the heavens have not fallen. Quite the contrary, petitioner is now
accorded the opportunity to prove his clear conscience and inculpability.
WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA 7080.

Epilogue

"The constitutionality of laws is presumed. To justify nullification of a law, there must be a

clear and unequivocal breach of the Constitution, not a doubtful or argumentative
implication; a law shall not be declared invalid unless the conflict with the Constitution is
clear beyond a reasonable doubt. ‘The presumption is always in favor of constitutionality x x
x. To doubt is to sustain.’ x x x."49

A law should not be overturned on the basis of speculation or conjecture that it is

unconstitutionally vague. Everyone is duty-bound to adopt a reasonable interpretation that
will uphold a statute, carry out its purpose and render harmonious all its parts. Indeed, the
constitutionality of a statute must be sustained if, as in this case, a ground therefor can
possibly be found. For the unbending teaching is that a law cannot be declared invalid, unless
the conflict with the Constitution is shown to be clearly beyond reasonable doubt.

To lend color and vividness to the otherwise boring legalese that has been used to dissect RA
7080, the parties to this case laced their arguments with interesting little stories. Thus,
petitioner opened his Oral Argument with an admittedly apocryphal account of a befuddled
student of law who could not make heads or tails of the meanings of series, combination and
pattern.

On the other hand, the solicitor general compares petitioner with Hans Christian Andersen’s
fabled tailors who tried to fool the emperor into walking around naked by making him
believe that anyone who did not see the invisible garment, which they had supposedly sewn
G.R. No. 152259 July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES,
respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea
and trial, however they may be named or identified -- whether as a motion to quash or
motion to dismiss or by any other nomenclature -- delay the administration of justice and
unduly burden the court system. Grounds not included in the first of such repetitive motions
are generally deemed waived and can no longer be used as bases of similar motions
subsequently filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives
who "intervene, directly or indirectly, in any business, transaction, contract or application
with the Government." This provision is not vague or "impermissibly broad," because it can
easily be understood with the use of simple statutory construction. Neither may the
constitutionality of a criminal statute such as this be challenged on the basis of the
"overbreadth" and the "void-for-vagueness" doctrines, which apply only to free-speech
cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set aside
the November 20, 20012 and the March 1, 20023 Resolutions of the Sandiganbayan in
Criminal Case No. 13736. The first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The
arraignment of the accused and the pre-trial of the case shall proceed as
scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential Commission on Good
Government (PCGG), filed on July 12, 1989 an information before [the anti-graft
court] charging the accused [with] violation of Section 5, Republic Act No. 3019,5 as
amended. The Information reads:
'That on or about and during the period from July 16, 1975 to July 29,
1975, in Metro Manila, Philippines, and within the jurisdiction of [the
Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos,
former President of the Philippines, and therefore, related to the latter
by affinity within the third civil degree, did then and there wil[l]fully and
unlawfully, and with evident bad faith, for the purpose of promoting his
self-interested [sic] and/or that of others, intervene directly or indirectly,
in a contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and the
Bataan Shipyard and Engineering Company (BASECO), a private
corporation, the majority stocks of which is owned by former President
Ferdinand E. Marcos, whereby the NASSCO sold, transferred and
conveyed to the BASECO its ownership and all its titles and interests over
all equipment and facilities including structures, buildings, shops,
quarters, houses, plants and expendable and semi-expendable assets,
located at the Engineer Island known as the Engineer Island Shops
including some of its equipment and machineries from Jose Panganiban,
Camarines Norte needed by BASECO in its shipbuilding and ship repair
program for the amount of P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO
DEFER ARRAIGNMENT' claiming that no valid preliminary investigation was
conducted in the instant case. He asserts that if a preliminary investigation could
be said to have been conducted, the same was null and void having been
undertaken by a biased and partial investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an
order giving the accused fifteen days to file a Motion for Reinvestigation with the
Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a petition for
Certiorari and Prohibition with prayer for temporary restraining order. On January
21, 1998, the Supreme Court dismissed the petition for failure to show that [the
Sandiganbayan] committed grave abuse of discretion in issuing the assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the Special
Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U.
Tabanguil, manifested that the prosecution had already concluded the
 reinvestigation of the case. He recommended the dismissal of the instant case.
Both the Deputy Special Prosecutor and the Special Prosecutor approved the
recommendation. However, Ombudsman Aniano A. Desierto disagreed and
directed the prosecutors to let the [petitioner] present his evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO
QUASH AND TO DEFER ARRAIGNMENT'.
"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO
DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the motion and
admitted the attached (third) Motion to Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF
[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION
STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE
INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED
AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS
VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION,
[PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY
PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by petitioner, except the third
one, had already been raised by him and passed upon in its previous Resolutions.7 In
resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973
Constitution became effective only in 1981 when the basic law was amended. Since his
alleged illegal intervention had been committed on or about 1975, the amended provision
was inapplicable to him.8
In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed
upon the other grounds he had raised. It ruled that his right to a preliminary investigation
was not violated, because he had been granted a reinvestigation.9 It further held that his
right to be informed of the nature and cause of the accusation was not trampled upon,
either, inasmuch as the Information had set forth the essential elements of the offense
charged.10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely abused its
discretion amounting to lack of, or in excess of jurisdiction –
I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and
incontrovertible evidence that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because its
vagueness violates the due process right of an individual to be informed
of the nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it
violates the due process right of an individual to be presumed innocent
until the contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the nature
and the cause of the accusation against him was violated;
D. The constitutional right to due process of law of petitioner x x x was
violated during the preliminary investigation stage in the following ways:
[i] No valid preliminary investigation was con-ducted for
Criminal Case No. 13736; and
[ii] The preliminary investigation was conducted by a biased
and partial investigator.
E. The criminal action or liability has been extinguished by prescription;
and
F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x
x x is immune from criminal prosecution.
 And
II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of
the laws."12
Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is
unconstitutional; (2) whether the Information is vague; (3) whether there was a valid
preliminary investigation; (4) whether the criminal action or liability has been extinguished by
prescription; and (5) whether petitioner is immune from criminal prosecution under then
Section 17 of Article VII of the 1973 Constitution.
The Court's Ruling
The Petition has no merit.
First Issue:
Constitutionality of Section 5,
Republic Act 3019
Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the
Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7,
2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this
Supplemental Motion which was, in effect, his third motion to quash.13 We note that the
Petition for Certiorari before us challenges the denial of his original, not his Supplemental,
Motion to Dismiss.
Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have
filed a motion for reconsideration of the denial. Had reconsideration been turned down, the
next proper remedy would have been either (1) a petition for certiorari14 -- if there was
grave abuse of discretion -- which should be filed within 60 days from notice of the assailed
order;15 or (2) to proceed to trial without prejudice to his right, if final judgment is rendered
against him, to raise the same questions before the proper appellate court.16 But instead of
availing himself of these remedies, he filed a "Motion to Dismiss" on June 19, 2001.
Impropriety of
Repetitive Motions
There is no substantial distinction between a "motion to quash" and a "motion to dismiss."
Both pray for an identical relief, which is the dismissal of the case. Such motions are
employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial.
A motion to quash is generally used in criminal proceedings to annul a defective indictment.
A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at
summarily defeating a complaint. Thus, our Rules of Court use the term "motion to quash" in
criminal,17 and "motion to dismiss" in civil, proceedings.18
In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are
anchored on basically the same grounds and pray for the same relief. The hairsplitting
distinction posited by petitioner does not really make a difference.
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to
quash. A party is not permitted to raise issues, whether similar or different, by installment.
The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary
objections, and trial would never commence. A second motion to quash delays the
administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that
grounds not raised in the first motion to quash are generally deemed waived.19 Petitioner's
"Motion to Dismiss" violates this rule.
Constitutionality of
the Challenged Provision
If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright.
However, given the importance of this case in curtailing graft and corruption, the Court will
nevertheless address the other issues on their merit. Petitioner challenges the validity of
Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the
offense is allegedly vague and "impermissibly broad."
It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines have
special application only to free-speech cases. They are not appropriate for testing the validity
of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows:
"A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible 'chilling effect' upon protected speech. The theory is
that '[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.' The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
xxxxxxxxx
 In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute,
the established rule is that 'one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might
be unconstitutional.' As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'"22 (underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on the
ground of ambiguity."23 While mentioned in passing in some cases, the void-for-
vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong
Eng v. Trinidad,24 the Bookkeeping Act was found unconstitutional because it
violated the equal protection clause, not because it was vague. Adiong v.
Comelec25 decreed as void a mere Comelec Resolution, not a statute. Finally,
Santiago v. Comelec26 held that a portion of RA 6735 was unconstitutional because
of undue delegation of legislative powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of
parties whose cases may not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no factual concreteness. In
Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these
words:27
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-
by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a
"manifestly strong medicine" to be employed "sparingly and only as a last resort." In
determining the constitutionality of a statute, therefore, its provisions that have allegedly
been violated must be examined in the light of the conduct with which the defendant has
been charged.28
As conduct -- not speech -- is its object, the challenged provision must be examined only "as
applied" to the defendant, herein petitioner, and should not be declared unconstitutional for
overbreadth or vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or
for any relative, by consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines, the President of
the Senate, or the Speaker of the House of Representatives, to intervene, directly
or indirectly, in any business, transaction, contract or application with the
Government: Provided, That this section shall not apply to any person who, prior to
the assumption of office of any of the above officials to whom he is related, has
been already dealing with the Government along the same line of business, nor to
any transaction, contract or application already existing or pending at the time of
such assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but
depends upon compliance with requisites provided by law, or rules or regulations
issued pursuant to law, nor to any act lawfully performed in an official capacity or
in the exercise of a profession."
Petitioner also claims that the phrase "to intervene directly or indirectly, in any business,
transaction, contract or application with the Government" is vague and violates his right to
be informed of the cause and nature of the accusation against him.29 He further complains
that the provision does not specify what acts are punishable under the term intervene, and
thus transgresses his right to be presumed innocent.30 We disagree.
Every statute is presumed valid.31 On the party challenging its validity weighs heavily the
onerous task of rebutting this presumption.32 Any reasonable doubt about the validity of the
law should be resolved in favor of its constitutionality.33 To doubt is to sustain, as tersely put
by Justice George Malcolm. In Garcia v. Executive Secretary,34 the rationale for the
presumption of constitutionality was explained by this Court thus:
"The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid in the absence of a
clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins upon
each department a becoming respect for the acts of the other departments. The
theory is that as the joint act of Congress and the President of the Philippines, a law
has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted."35
In the instant case, petitioner has miserably failed to overcome such presumption. This Court
has previously laid down the test for determining whether a statute is vague, as follows:
"x x x [A] statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that species of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either
by a saving clause or by construction.
 "A statute or act may be said to be vague when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its meaning and differ
in its application. In such instance, the statute is repugnant to the Constitution in
two (2) respects - it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.36 But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first
may be 'saved' by proper construction, while no challenge may be mounted as
against the second whenever directed against such activities.37 With more reason,
the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.
"The test in determining whether a criminal statute is void for uncertainty is
whether the language conveys a sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practice.38 It must be
stressed, however, that the 'vagueness' doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds of the
statute are clearly delineated. An act will not be held invalid merely because it
might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to
provide all the details in advance as in all other statutes."39
A simpler test was decreed in Dans v. People,40 in which the Court said that there was
nothing vague about a penal law that adequately answered the basic query "What is the
violation?"41 Anything beyond -- the hows and the whys -- are evidentiary matters that the
law itself cannot possibly disclose, in view of the uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as
follows:
1. The offender is a spouse or any relative by consanguinity or affinity within the
third civil degree of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives; and
2. The offender intervened directly or indirectly in any business, transaction,
contract or application with the government.
Applicability of
Statutory Construction
As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of
the Solicitor General that the word can easily be understood through simple statutory
construction. The absence of a statutory definition of a term used in a statute will not render
the law "void for vagueness," if the meaning can be determined through the judicial function
of construction.43 Elementary is the principle that words should be construed in their
ordinary and usual meaning.
"x x x. A statute is not rendered uncertain and void merely because general terms
are used therein, or because of the employment of terms without defining them;44
much less do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in the form of expression of
its will, and its inability to so define the words employed in a statute will not
necessarily result in the vagueness or ambiguity of the law so long as the legislative
will is clear, or at least, can be gathered from the whole act x x x.
"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute
will be interpreted in their natural, plain and ordinary acceptation and
signification,45 unless it is evident that the legislature intended a technical or
special legal meaning to those words.46 The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers - to use statutory phraseology
in such a manner is always presumed."47
The term intervene should therefore be understood in its ordinary acceptation, which is to
"to come between."48 Criminally liable is anyone covered in the enumeration of Section 5 of
RA 3019 -- any person who intervenes in any manner in any business, transaction, contract or
application with the government. As we have explained, it is impossible for the law to
provide in advance details of how such acts of intervention could be performed. But the
courts may pass upon those details once trial is concluded. Thus, the alleged vagueness of
intervene is not a ground to quash the information prior to the commencement of the trial.
In sum, the Court holds that the challenged provision is not vague, and that in any event, the
"overbreath" and "void for vagueness" doctrines are not applicable to this case.
Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further
contends that the Information itself is also unconstitutionally vague, because it does not
specify the acts of intervention that he supposedly performed.49 Again, we disagree.
When allegations in the information are vague or indefinite, the remedy of the accused is not
a motion to quash, but a motion for a bill of particulars.50 The pertinent provision in the
Rules of Court is Section 9 of Rule 116, which we quote:
 "Section 9. Bill of particulars. -- The accused may, before arraignment, move for a
bill of particulars to enable him properly to plead and prepare for trial. The motion
shall specify the alleged defects of the complaint or information and the details
desired."
The rule merely requires the information to describe the offense with sufficient particularity
as to apprise the accused of what they are being charged with and to enable the court to
pronounce judgment. 51 The particularity must be such that persons of ordinary intelligence
may immediately know what is meant by the information.52
While it is fundamental that every element of the offense must be alleged in the
information,53 matters of evidence -- as distinguished from the facts essential to the nature
of the offense -- need not be averred.54 Whatever facts and circumstances must necessarily
be alleged are to be determined by reference to the definition and the essential elements of
the specific crimes.55
In the instant case, a cursory reading of the Information shows that the elements of a
violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations
describe the offense committed by petitioner with such particularity as to enable him to
prepare an intelligent defense. Details of the acts he committed are evidentiary matters that
need not be alleged in the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary investigation when he
questioned before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days
to file a Motion for Reinvestigation with the Office of the Special Prosecutor.56 Citing
Cojuangco v. Presidential Commission on Good Government,57 he undauntedly averred that
he was deprived of his right to a preliminary investigation, because the PCGG acted both as
complainant and as investigator.58
In the case cited above, this Court declared that while PCGG had the power to conduct a
preliminary investigation, the latter could not do so with the "cold neutrality of an impartial
judge" in cases in which it was the agency that had gathered evidence and subsequently filed
the complaint.59 On that basis, this Court nullified the preliminary investigation conducted
by PCGG and directed the transmittal of the records to the Ombudsman for appropriate
action.
It is readily apparent that Cojuangco does not support the quashal of the Information against
herein petitioner. True, the PCGG initiated the present Complaint against him; hence, it could
not properly conduct the preliminary investigation. However, he was accorded his rights --
the Sandiganbayan suspended the trial and afforded him a reinvestigation by the
Ombudsman. The procedure outlined in Cojuangco was thus followed.
The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which held
that the failure to conduct a valid preliminary investigation would not warrant the quashal of
an information. If the information has already been filed, the proper procedure is for the
Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being
conducted or completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to Quash filed by petitioner
with the Sandiganbayan on October 8, 1999.62 Such issue should be disregarded at this
stage, since he failed to challenge its ruling debunking his Motion within the 60-day period
for the filing of a petition for certiorari. A party may not circumvent this rule by filing a
subsequent motion that raises the same issue and the same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is utterly
unmeritorious. He points out that according to the Information, the offense was committed
"during the period from July 16, 1975 to July 29, 1975." He argues that when the Information
was filed on July 12, 1989,63 prescription had already set in, because the prescriptive period
for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was
allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect
only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses penalized by special laws.
Its pertinent provision reads:
"Sec. 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same not be known at the time, from the discovery
thereof and the institution of judicial proceedings for its investigation and
punishment.
"The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy."
Consistent with the provision quoted above, this Court has previously reckoned the
prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA
Revolution) from the discovery of the violation.66 In Republic v. Desierto, the Court
explained:
"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case,
the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the
Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA
No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
created by then President Fidel V. Ramos to investigate and to recover the so-
called 'Behest Loans', where the Philippine Government guaranteed several foreign
loans to corporations and entities connected with the former President Marcos. x x
x In holding that the case had not yet prescribed, this Court ruled that:
'In the present case, it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of RA No. 3019 at the time
the questioned transactions were made because, as alleged, the public
officials concerned connived or conspired with the 'beneficiaries of the
loans.' Thus, we agree with the COMMITTEE that the prescriptive period
for the offenses with which the respondents in OMB-0-96-0968 were
charged should be computed from the discovery of the commission
thereof and not from the day of such commission.
xxx xxx xxx
'People v. Duque is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special laws are
frequently not immoral or obviously criminal in themselves; for this
reason, the applicable statute requires that if the violation of the special
law is not known at the time, the prescription begins to run only from the
discovery thereof, i.e., discovery of the unlawful nature of the constitutive
act or acts.' (Italics supplied)
"There are striking parallelisms between the said Behest Loans Case and the
present one which lead us to apply the ruling of the former to the latter. First, both
cases arose out of seemingly innocent business transactions; second, both were
'discovered' only after the government created bodies to investigate these
anomalous transactions; third, both involve prosecutions for violations of RA No.
3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the
respondents conspired and connived with one another in order to keep the alleged
violations hidden from public scrutiny.
"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite
relevant and instructive as to the date when the discovery of the offense should be
reckoned, thus:
'In the present case, it was well-nigh impossible for the government, the
aggrieved party, to have known the violations committed at the time the
questioned transactions were made because both parties to the
transactions were allegedly in conspiracy to perpetuate fraud against the
government. The alleged anomalous transactions could only have been
discovered after the February 1986 Revolution when one of the original
respondents, then President Ferdinand Marcos, was ousted from office.
Prior to said date, no person would have dared to question the legality or
propriety of those transactions. Hence, the counting of the prescriptive
period would commence from the date of discovery of the offense, which
could have been between February 1986 after the EDSA Revolution and
26 May 1987 when the initiatory complaint was filed.'"67
The above pronouncement is squarely applicable to the present case. The general rule that
prescription shall begin to run from the day of the commission of the crime cannot apply to
the present case. It is not legally prudent to charge the State, the aggrieved party, with
knowledge of the violation of RA 3019 at the time the alleged intervention was made. The
accused is the late President Ferdinand E. Marcos' brother-in-law. He was charged with
intervening in a sale involving a private corporation, the majority stocks of which was
allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared question the legality
of the sale or would even have thought of investigating petitioner's alleged involvement in
the transaction. It was only after the creation68 of PCGG69 and its exhaustive investigations
that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a
Complaint against former President Marcos and petitioner for violation of the Anti-Graft and
Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well
within the prescriptive period of ten years from the discovery of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-
ranking naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.70
He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:
"The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his
specific orders during his tenure.
"x x x xxx x x x"
As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner
because the immunity amendment became effective only in 1981 while the alleged crime
happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in
order to determine the extent of its applicability. We explained therein that executive
immunity applied only during the incumbency of a President. It could not be used to shield a
non-sitting President from prosecution for alleged criminal acts done while sitting in office.
The reasoning of petitioner must therefore fail, since he derives his immunity from one who
is no longer sitting as President. Verily, the felonious acts of public officials and their close
relatives "are not acts of the State, and the officer who acts illegally is not acting as such but
stands on the same footing as any other trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion
in issuing the assailed Resolutions.72 On the contrary, it acted prudently, in accordance with
law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the
Sandiganbayan AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and
Azcuna, JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.
x-------------------------------------------------------------------x
SEPARATE OPINION
TINGA, J.:
I concur in the result of the ponencia and the proposition that Section 5 of the Anti-Plunder
Law is constitutional. The validity of the provision has been passed upon by the Court before
in Estrada v. Sandiganbayan.1 I also agree with the ponencia's reiteration of the ruling in
Estrada that Section 5 is receptive to the basic principle in statutory construction that words
should be construed in their ordinary and usual meaning.2
However, with all due respect, I raise serious objections to the ponencia's holding that the
so-called "void for vagueness" doctrine has special application only to free speech cases,3 and
the undeclared proposition that penal
laws may not be stricken down on the ground of ambiguity. 4 I am aware that the assertions
rely upon the separate opinions of the herein ponente5 and Mr. Justice Vicente Mendoza6 in
Estrada. I am also aware that the critical portion of Mr. Justice Mendoza's separate opinion in
Estrada was cited with approval by Mr. Justice Bellosillo's ponencia therein.7
The incontrovertible reality though is that the majority's pronouncement in Estrada that
penal statutes cannot be challenged on vagueness grounds did not form part of the ratio
decidendi. The ratio, in the words of Justice Bellosillo, was: "as it is written, the Plunder Law
contains ascertainable standards and well-defined parameters which would enable the
accused to determine the nature of his violation,"8 and thus the law does not suffer from
unconstitutionality. The discussion on the vagueness aspect was not decisive of the main
issue and, therefore, clearly obiter dictum. I submit that it is erroneous to resolve the present
petition on the basis of that dictum in Estrada.
As the obiter dictum in Estrada is needlessly made a ratio in the present case, the ponencia
herein has even unwittingly elevated to doctrinal level the proposition that the
constitutionality of penal laws cannot be challenged on the ground of vagueness. I humbly
submit that the stance is flawed and contrary to fundamental principles of due process.
The Bill of Rights occupies a position of primacy in the fundamental law.9 It is thus sacrosanct
in this jurisdiction that no person shall be deprived of life, liberty or property without due
process of law.10
A challenge to a penal statute premised on the argument that the law is vague is a proper
invocation of the due process clause. A statute that lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ as to its application
violates the due process clause, for failure to accord persons fair notice of the conduct to
avoid.11 As held by the Court in People v. Dela Piedra:12
Due process requires that the terms of a penal statute must be sufficiently explicit
to inform those who are subject to it what conduct on their part will render them
liable to its penalties. A criminal statute that "fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute,"
or is so indefinite that "it encourages arbitrary and erratic arrests and convictions,"
is void for vagueness. The constitutional vice in a vague or indefinite statute is the
injustice to the accused in placing him on trial for an offense, the nature of which
he is given no fair warning.13
It should also be reckoned that the Bill of Rights likewise guarantees that no person shall be
held to answer for a criminal offense without due process of law,14 and that the accused
enjoys the right to be informed of the nature and cause of the accusation against him or
her.15 The Bill of Rights ensures the fullest measure of protection to an accused. If a
particular mode of constitutional challenge, such as one predicated on the "void for
vagueness" doctrine, is available to an ordinary person deprived of property or means of
expression, then more so should it be accessible to one who is in jeopardy of being deprived
of liberty or of life.16
"Vagueness" and "Overbreadth" Are Distinct Concepts
A fundamental flaw, to my mind, in the analysis employed by the ponencia and some of the
separate opinions in Estrada is the notion that the "vagueness" and "overbreadth" doctrines
are the same and should be accorded similar treatment. This is erroneous.
Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a correct distinction between
"vagueness" and "overbreadth":
 A view has been proferred that "vagueness and overbreadth doctrines are not
applicable to penal laws." These two concepts, while related, are distinct from each
other. On one hand, the doctrine of overbreadth applies generally to statutes
that infringe upon freedom of speech. On the other hand, the "void-for-
vagueness" doctrine applies to criminal laws, not merely those that regulate
speech or other fundamental constitutional right. (not merely those that regulate
speech or other fundamental constitutional rights.) The fact that a particular
criminal statute does not infringe upon free speech does not mean that a facial
challenge to the statute on vagueness grounds cannot succeed.17
This view should be sustained, especially in light of the fact that the "void for vagueness"
doctrine has long been sanctioned as a means to invalidate penal statutes.
"Void For Vagueness" Invalidation of Penal Statutes has Long-Standing Jurisprudential History
As early as 1926, the United States Supreme Court held in Connally v. General Construction
Co., thus: 18
That the terms of a penal statute creating a new offense must be sufficiently
explicit to inform those who are subject to it what conduct on their part will render
them liable to its penalties is a well- recognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of law; and a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application
violates the first essential of due process of law.
Thus in Connally, a statute prescribing penalties for violation of an eight-hour workday law
was voided, presenting as it did, a "double uncertainty, fatal to its validity as a criminal
statute."19
In Lanzetta v. State of New Jersey,20 a challenge was posed to a statute defining a "gangster"
and prescribing appropriate penalties, for being void for vagueness. The U.S. Supreme Court
ruled that the definition of a "gang" under the statute was vague, and the statute void for
vagueness. It was of no moment that the information against the accused described the
offense with particularity.
If on its face the challenged provision is repugnant to the due process clause,
specification of details of the offense intended to be charged would not serve to
validate it. (United States v. Reese, 92 U.S. 214, 221; Czarra v. Board of Medical
Supervisors, 25 App.D.C. 443, 453.) It is the statute, not the accusation under it,
that prescribes the rule to govern conduct and warns against transgression. (See
Stromberg v. California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell
v. Griffin, 303 U.S. 444 , 58 S.Ct. 666.) No one may be required at peril of life, liberty
or property to speculate as to the meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids.21 (Emphasis supplied)
In Bouie v. City of Columbia,22 civil rights protesters were charged with violating a criminal
trespass statute proscribing entry upon the lands of another after notice prohibiting such
entry. A state court construed the statute as applicable to the act of remaining on the
premises of another after receiving notice to leave. The U.S. Supreme Court reversed,
applying again the "void for vagueness" doctrine. Said Court admitted that "typical
applications of the principle, the uncertainty as to the statute's prohibition resulted from
vague or overbroad language in the statute itself."23 Yet the Court noted that "[t]here can be
no doubt that a deprivation of the right of fair warning can result not only from vague
statutory language but also from an unforeseeable and retroactive judicial expansion of
narrow and precise statutory language."24 Accordingly, the Court overturned the convictions,
holding that "the crime for which [they] were convicted was not enumerated in the statute
at the time of their conduct," thus denying the accused due process of law.25
In Papachristou v. City of Jacksonville,26 a statute penalizing vagrancy was voided by the U.S.
Supreme Court, again for being vague:
This ordinance is void for vagueness, both in the sense that it "fails to give a person
of ordinary intelligence fair notice that his contemplated conduct is forbidden by
the statute," (United States v. Harriss, 347 U.S. 612, 617), and because it
encourages arbitrary and erratic arrests and convictions (Thornhill v. Alabama, 310
U.S. 88; Herndon v. Lowry, 301 U.S. 242).27
Kolender v. Lawson28 involves another affirmation of the well-established doctrine. There,
the US Supreme Court invalidated a loitering statute requiring a loiterer to produce credible
and reliable identification when requested by a peace officer. It elucidated:
Although the doctrine focuses on both actual notice to citizens and arbitrary
enforcement, we have recognized recently that the more important aspect of the
vagueness doctrine "is not actual notice, but the other principal element of the
doctrine-the requirement that a legislature establish minimal guidelines to govern
law enforcements. Where the legislature fails to provide such minimal guidelines, a
criminal statute may permit "a standardless sweep [that] allows policemen,
prosecutors and juries to pursue their personal predilections.29
In the fairly recent case of City of Chicago v. Morales,30 the U.S. Supreme Court affirmed a
lower court ruling invalidating as void for vagueness an ordinance prohibiting "criminal street
gang members" from loitering in public places, as well as the conviction based on the
invalidated ordinance. The US Court again asserted:
For it is clear that the vagueness of this enactment makes a facial challenge
appropriate. This is not an ordinance that "simply regulates business behavior and
contains a scienter requirement." (See Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U. S. 489, 499 (1982)). It is a criminal law that contains no mens
rea requirement (see Colautti v. Franklin , 439 U. S. 379, 395 (1979)), and infringes
on constitutionally protected rights (see id. , at 391). When vagueness permeates
the text of such a law, it is subject to facial attack.
 Vagueness may invalidate a criminal law for either of two independent reasons.
First, it may fail to provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits; second, it may authorize and even
encourage arbitrary and discriminatory enforcement. (See Kolender v. Lawson, 461
U. S., at 357).31
Given the wealth of jurisprudence invalidating penal statutes for suffering from vagueness, it
is mystifying why the notion that the doctrine applies only to "free-speech" cases has gained
a foothold in this Court. It might be argued that the above-cited cases are foreign
jurisprudence, inapplicable to this jurisdiction. Yet it is submitted that the rule is applicable
here, not because of its repeated affirmation by American courts, but because such rule is
lucidly consistent with our own fundamental notions of due process, as enunciated in our
own Constitution.
What then is the standard of due process which must exist both as a procedural
and as substantive requisite to free the challenged ordinance, or any government
action for that matter, from the imputation of legal infirmity; sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates
of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reasons and result in sheer oppression. Due process is
thus hostile to any official action marred by lack of reasonableness. Correctly has it
been identified as freedom from arbitrariness. It is the embodiment of the sporting
idea of fair play. It exacts fealty "to those strivings for justice" and judges the act of
officialdom of whatever branch" in the light of reason drawn from considerations
of fairness that reflect [democratic] traditions of legal and political thought." It is
not a narrow or "technical conception with fixed content unrelated to time, place
and circumstances," decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."32
The dissent of Justice White, joined by Justice Rehnquist, in Kolender v. Lawson finds some
kinship with Mr. Justice Mendoza's views in Estrada, insofar as they point out a distinction
between the "vagueness" doctrine, as applied to criminal statutes, on one hand, and as
applied to US First Amendment cases, on the other.
The usual rule is that the alleged vagueness of a criminal statute must be judged in
light of the conduct that is charged to be violative of the statute. If the actor is
given sufficient notice that his conduct is within the proscription of the statute, his
conviction is not vulnerable on vagueness grounds, even if as applied to other
conduct, the law would be unconstitutionally vague. None of our cases "suggests
that one who has received fair warning of the criminality of his own conduct from
the statute in question is nonetheless entitled to attack it because the language
would not give similar fair warning ;with respect to other conduct which might be
within its broad and literal ambit. One to whose conduct a statute clearly applies
may not successfully challenge it for vagueness." The correlative rule is that a
criminal statute is not unconstitutionally vague on its face unless it is
"impermissibly vague in all of its applications."
These general rules are equally applicable to cases where First Amendment or
other "fundamental" interests are involved. The Court has held that in such
circumstances "more precision in drafting may be required because of the
vagueness doctrine in the case of regulation of expression, a "greater degree of
specificity" is demanded than in other contexts. But the difference in such cases
"relates to how strict a test of vagueness shall be applied in judging a particular
criminal statute." It does not permit the challenger of the statute to confuse
vagueness and overbreadth by attacking the enactment as being vague as applied
to conduct other than his own. Of course, if his own actions are themselves
protected by the First Amendment or other constitutional provision, or if the
statute does not fairly warn that it is proscribed, he may not be convicted. But it
would be unavailing for him to claim that although he knew his own conduct was
unprotected and was plainly enough forbidden by the statute, others may be in
doubt as to whether their acts are banned by the law.33 (Emphasis supplied)
Still, the quoted dissenting opinion concedes the applicability of the "void for vagueness" rule
in striking infirm criminal statutes. It just enunciates a greater demand for "specificity" in
statutes which may infringe on free speech protections.
Moreover, Mr. Justice Mendoza likewise invoked American jurisprudence in support of his
view that the overbreadth and vagueness doctrines apply only to free speech cases.34 He
cites, among others, U.S. v. Salerno35
and Broadrick v. Oklahoma.36 In Salerno, the US Supreme Court notes that the "overbreadth"
doctrine was inapplicable outside the context of the First Amendment.37 Notably though, the
US Court did not make the same assertion as to the "vagueness" doctrine. Had it done so in
Salerno, it would have been incongruent with its previous rulings, as well as with its
subsequent ones.
Broadrick v. Oklahoma did not pertain to a challenge to a penal statute, but rather an
Oklahoma law restricting the political activities of that state's classified civil servants.38 Again,
Broadrick may advert to a correct interpretation of the "overbreadth" doctrine. However, in
the face of numerous jurisprudence affirming the "vagueness" challenge of American penal
laws neither Broadrick nor Salerno can be utilized to assert a converse rule.
Mr. Justice Mendoza's opinion also cites from the American constitutional law textbook of
Sullivan and Gunther, to assert that "vagueness challenges in the First Amendment context,
like overbreadth challenges, typically produce facial invalidation, while statutes found vague
as a matter of due process typically are invalidated only as
applied to a particular defendant."39 This may be a correct restatement of the American rule.
Yet, it does not necessarily mean that penal laws are not susceptible to a "void for
vagueness" challenge. In fact, in the same page cited in Mr. Justice Mendoza's opinion,
Sullivan and Gunther cite cases wherein American penal laws were stricken down for being
vague, such as Connally v. General Construction Co., Kolender v. Lawson, and Papachristou v.
Jacksonville.40
The same citation likewise refers to the odd situation wherein unlike in First Amendment
cases, due process invalidations for vagueness apply only to a particular defendant. Sullivan
and Gunther posit that the broader protection afforded in First Amendment cases follow
from "a special concern about the 'chilling effect' of vague statutes on protected speech."41
However, the ponencia latches onto this distinction in order to foist the bugaboo of "mass
acquittal" of criminals due to the facial invalidation of criminal statutes.42 Moreover, the
ponencia asserts that such invalidation would constitute a departure from the usual
requirement of actual case and controversy and permit decisions to be made in a sterile
abstract context having no factual concreteness.43
Such concerns are overwrought. In this jurisdiction, judicial review over the constitutionality
of statutes, penal or otherwise, avails only upon the concurrence of (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party raising the
constitutional question; (3) a plea that the function be exercised at the earliest opportunity;
and (4) a necessity that the constitutional question be passed upon in order to decide the
case.44 Challenges to the validity of laws are not lightly undertaken, and the non-existence of
any of the four conditions precedent bar a successful challenge. Surely, not just anybody
picked off the street prepossesses the requisite standing, nor could just any case present
itself as the proper vehicle for a constitutional attack.
ground of ambiguity, does not mean that no penal law can ever be invalidated on that
ground.
As long as the due process clause remains immanent in our Constitution, its long reach
should be applied to deter and punish unwarranted deprivations of life, liberty or property.
Violations of due process are myriad, ranging as they do from the simple to the complicated,
from the isolated to the intermittent, from the abashed to the brazen. No advance statement
can outrightly cast an act as beyond the ambit of the due process clause, especially when
applied to the lot of an accused, for such is simply presumptuous and anathema to the spirit
of fair play.
I may disagree with the eventual conclusions of Justices Kapunan, Ynares-Santiago and
Sandoval-Gutierrez in the Estrada case that Section 5 of the Anti-Plunder Law is void for
vagueness. Yet, I submit that their inquiry as to whether the said criminal statute was void for
being vague is a juristic exercise worth pursuing. If the ponencia affirms the earlier erroneous
pronouncement as asserted in the main by Mr. Justice Mendoza in Estrada, then I express
the same fear articulated by Mr. Justice Kapunan in his dissent, that "such stance is
tantamount to saying that no criminal law can be challenged however repugnant it is to the
constitutional right to due process."46

These conditions precedent successfully weigh the concerns of the State, fearful of
instabilities brought by frequent invalidations of the laws it passes, and with the basic
component of justice that a person to whom a wrong is done by the State can seek
vindication from the courts. Our basic jurisprudential barrier has shielded this Court for
generations from exercising unwarranted and unmitigated judicial review. There is no need
to further raise the bar for review, especially on such flimsy foundations, lest we insulate
ourselves from the pleas of the truly prejudiced, truly injured, truly violated.

At the same time, the ponencia raises the concern that the invalidation of a void law will
unnecessarily benefit those without actual cases or controversies. It must be remembered
though that the Court will not unhesitatingly strike down a statute if a narrower alternative
affording the same correct relief is available. Within the confines of this discretion, all the
tools of searching inquiry are at the Court's disposal to carve as narrow a rule as necessary.

Still and all, if there is no alternative but to strike down a void law, there should be no
hesitation on the part of this Court in ruling it so, no matter the effective scope and reach of
the decision. The State has no business promulgating void laws, which stick out like a cancer
infecting our constitutional order. When faced with the proper opportunity, it is the Court's
duty to excise the tumor no matter how painful. Unfortunately, the solution advocated by
the ponencia barring penal statutes from "void for vagueness" assaults hides the patient
from the doctor.

People v. Dela Piedra, earlier cited,45 did not invalidate the statute questioned therein on the
"void for vagueness" ground. Yet it affirms that the "void for vagueness" challenge to a penal
law may be sustained if the statute contravenes due process. The circumstance, as the
ponencia herein points out, that no penal law has been declared unconstitutional on the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South
Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL
SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and
CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director
Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in
his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity
as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior
and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff,
and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR
REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR
DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA,
RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ,
ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE
LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO.
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein
by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by
Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE
AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO,
DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M.
Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S.
MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA,
Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM
COUNCIL (ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST,
KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS,
ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN
NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA
TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST,
KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN
NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK),
STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN
NIÑO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS,
OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO,
DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER
NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372
(RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise
known as the Human Security Act of 2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a
concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July
16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade
Union and Human Rights (CTUHR), represented by their respective officers3 who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of
Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan,
Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by
their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona,
Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean
Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua
and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No.
178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya
(SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church
People’s Response (PCPR), which were represented by their respective officers5 who are also
bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as
G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of
Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto
E. Tañada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and
organizations mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by
filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No.
179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed
of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as
Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs
Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto
Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed
Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National
Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration,
Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center,
Philippine Center on Transnational Crime, and the PNP intelligence and investigative
elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or
quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.
(Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites,
viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi;
(c) the question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus
standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question on standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that it suffers thereby in some indefinite way. It must show
that it has been or is about to be denied some right or privilege to which it is lawfully entitled
or that it is about to be subjected to some burdens or penalties by reason of the statute or
act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1)
it has personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3)
the injury is likely to be redressed by a favorable action. (emphasis and underscoring
supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist
fronts" by the government, especially the military; whereas individual petitioners invariably
invoke the "transcendental importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and
personal injury, cases involving the constitutionality of penal legislation belong to an
altogether different genus of constitutional litigation. Compelling State and societal interests
in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial
scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None
of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890,
allege that they have been subjected to "close security surveillance by state security forces,"
their members followed by "suspicious persons" and "vehicles with dark windshields," and
their offices monitored by "men with military build." They likewise claim that they have been
branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly
points out that petitioners have yet to show any connection between the purported
"surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA,
ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the
Court to take judicial notice of respondents’ alleged action of tagging them as militant
organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing,
the National People’s Army (NPA). The tagging, according to petitioners, is tantamount to the
effects of proscription without following the procedure under the law.15 The petition of
BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter
must be one of common and general knowledge; (2) it must be well and authoritatively
settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the
jurisdiction of the court. The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to
facts evidenced by public records and facts of general notoriety. Moreover, a judicially
noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally
known within the territorial jurisdiction of the trial court; or (2) capable of accurate and
ready determination by resorting to sources whose accuracy cannot reasonably be
questionable.
Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may be
matters which are generally accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally known, and which may be
found in encyclopedias, dictionaries or other publications, are judicially noticed, provided,
they are of such universal notoriety and so generally understood that they may be regarded
as forming part of the common knowledge of every person. As the common knowledge of
man ranges far and wide, a wide variety of particular facts have been judicially noticed as
being matters of common knowledge. But a court cannot take judicial notice of any fact
which, in part, is dependent on the existence or non-existence of a fact of which the court
has no constructive knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners’ apprehension is insufficient to substantiate their plea. That no specific charge or
proscription under RA 9372 has been filed against them, three years after its effectivity,
belies any claim of imminence of their perceived threat emanating from the so-called
tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely
harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the
implementation of specific provisions of RA 9372 would result in direct injury to their
organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United
States of America17 (US) and the European Union18 (EU) have both classified the CPP, NPA
and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint
statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that
the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as
terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic terrorist or
outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years
now. From July 2007 up to the present, petitioner-organizations have conducted their
activities fully and freely without any threat of, much less an actual, prosecution or
proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda
Ilagan,20 urged the government to resume peace negotiations with the NDF by removing the
impediments thereto, one of which is the adoption of designation of the CPP and NPA by the
US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino
Administration21 of resuming peace talks with the NDF, the government is not imminently
disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.
More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.22 Of recent development is the filing of the first case
for proscription under Section 1723 of RA 9372 by the Department of Justice before the
Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-organizations do not
in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA
9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006
against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza
Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna.
Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina
Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were petitioner-
organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. 26
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those
charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court.
For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for
rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment
thereof make it easier to charge a person with rebellion, its elements not having been
altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment of
RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn
duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to
render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to
clothe the IBP or any of its members with standing.27 The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest
or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal
basis, of the claim of "political surveillance," the Court finds that she has not shown even the
slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former
Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R.
No. 178552 also conveniently state that the issues they raise are of transcendental
importance, "which must be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have been charged, or may be
charged. Mere invocation of human rights advocacy has nowhere been held sufficient to
clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the law’s enforcement. To rule otherwise would be to
corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A
taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress,28 whereas citizen standing must rest on direct and personal interest in the
proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress
for its implementation, while none of the individual petitioner-citizens has alleged any direct
and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public
right, do not establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.30 (emphasis and underscoring
supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more
emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable—definite and
concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and
underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a
Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent
events.34 Similarly, a petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the authorities does not present a
justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for
failure to cite any specific affirmative action of the Commission on Elections to implement
the assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the
religious freedom claim of the therein petitioners based merely on a perceived potential
conflict between the provisions of the Muslim Code and those of the national law, there
being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes
on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat
to any constitutional interest suffices to provide a basis for mounting a constitutional
challenge. This, however, is qualified by the requirement that there must be sufficient facts
to enable the Court to intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the
pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
plaintiffs faced a "credible threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein
filed an action before a federal court to assail the constitutionality of the material support
statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision of material support to
organizations declared by the Secretary of State as foreign terrorist organizations. They
claimed that they intended to provide support for the humanitarian and political activities of
two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory
petition clearly shows that the challenged prohibition forbids the conduct or activity that a
petitioner seeks to do, as there would then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that
they seek to do. No demonstrable threat has been established, much less a real and existing
one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as
"communist fronts" in no way approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar
to RA 9372 since the exercise of any power granted by law may be abused.45 Allegations of
abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the
crime of terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and
panic among the populace" and "coerce the government to give in to an unlawful demand"
are nebulous, leaving law enforcement agencies with no standard to measure the prohibited
acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only to free
speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the
schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally
applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the
application of the two doctrines to free speech cases. They particularly cite Romualdez v.
Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of
the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The
Court stated that "the overbreadth and the vagueness doctrines have special application only
to free-speech cases," and are "not appropriate for testing the validity of penal statutes."50 It
added that, at any rate, the challenged provision, under which the therein petitioner was
charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated
that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to
conduct a vagueness analysis, and concluded that the therein subject election offense53
under the Voter’s Registration Act of 1996, with which the therein petitioners were charged,
is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V.
Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No.
7080) clear and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept
of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that
allegations that a penal statute is vague and overbroad do not justify a facial review of its
validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was
quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as
a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow specificity." The
possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem
effect resulting from their very existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against socially harmful conduct.
In the area of criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put
it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the
Court ruled that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under
which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of the
law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one
to whom application of a statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional." As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process typically
are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis
for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in
Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, .
. . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," and is generally
disfavored. In determining the constitutionality of a statute, therefore, its provisions which
are alleged to have been violated in a case must be examined in the light of the conduct with
which the defendant is charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and
vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute
(under a claim of violation of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the
same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its meaning and differ as to its
application. It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from that
behavior, even though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real
litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and
defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to
penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the
"chilling effect" on protected speech, the exercise of which should not at all times be
abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful, so
long as it refrains from diminishing or dissuading the exercise of constitutionally protected
rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be
challenged" and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may
not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom,
and other fundamental rights may be facially challenged. Under no case may ordinary penal
statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a
penal statute is permitted, the prosecution of crimes may be hampered. No prosecution
would be possible. A strong criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third parties who are not before
it. As I have said in my opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State’s ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the State’s power to prosecute
on a mere showing that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.65 (Emphasis and underscoring
supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to
a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable
only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before
the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially overbroad if the court
confines itself only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law
becomes unenforceable until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory rules is the concern with
the "chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very existence may cause
others not before the court to refrain from constitutionally protected speech or expression."
An overbreadth ruling is designed to remove that deterrent effect on the speech of those
third parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment,68 and that claims of facial overbreadth
have been entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not specifically addressed to speech or
speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent
value to all society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to petitioners, a
limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible
absent an actual or imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of
the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding,
however, that there was no basis to review the law "on its face and in its entirety."72 It
stressed that "statutes found vague as a matter of due process typically are invalidated only
'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with
regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the
most important guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause
has been utilized in examining the constitutionality of criminal statutes. In at least three
cases,76 the Court brought the doctrine into play in analyzing an ordinance penalizing the
non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable
under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of
the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed penal
statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis
of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the
following elements may be culled: (1) the offender commits an act punishable under any of
the cited provisions of the Revised Penal Code, or under any of the enumerated special penal
laws; (2) the commission of the predicate crime sows and creates a condition of widespread
and extraordinary fear and panic among the populace; and (3) the offender is actuated by
the desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners
contend that the element of "unlawful demand" in the definition of terrorism77 must
necessarily be transmitted through some form of expression protected by the free speech
clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate
crime actually committed to trigger the operation of the key qualifying phrases in the other
elements of the crime, including the coercion of the government to accede to an "unlawful
demand." Given the presence of the first element, any attempt at singling out or highlighting
the communicative component of the prohibition cannot recategorize the unprotected
conduct into a protected speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses
on just one particle of an element of the crime. Almost every commission of a crime entails
some mincing of words on the part of the offender like in declaring to launch overt criminal
acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a
deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the
prohibition on discrimination in hiring on the basis of race will require an employer to take
down a sign reading "White Applicants Only" hardly means that the law should be analyzed
as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful conduct nor the essence of the whole
act as conduct and not speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the element of coercion
perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an abridgement of
freedom of speech or press to make a course of conduct illegal merely because the conduct
was, in part, initiated, evidenced, or carried out by means of language, either spoken,
written, or printed. Such an expansive interpretation of the constitutional guaranties of
speech and press would make it practically impossible ever to enforce laws against
agreements in restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed
the call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the
therein subject penal statute as applied to the therein petitioners inasmuch as they were
actually charged with the pertinent crimes challenged on vagueness grounds. The Court in
said cases, however, found no basis to review the assailed penal statute on its face and in its
entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of
a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a
"credible threat of prosecution" and "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statute’s future effect on
hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative
lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting
for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR
ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL.,
respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:ñé+.£ªwph!1
At issue in this case is the enforceability, before publication in the Official Gazette of June 14,
1982, of Presidential Executive Order No. 626-A dated October 25, 1980, providing for the
confiscation and forfeiture by the government of carabaos transported from one province to
another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-
wheeler truck in the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot,
Camarines Sur with Padre Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial veterinarian of
Camarines Sur, issued under the Revised Administrative Code and Presidential Decree No.
533, the Anti-Cattle Rustling Law of 1974; (2) a permit to transport large cattle issued under
the authority of the provincial commander; and (3) three certificates of inspection, one from
the Constabulary command attesting that the carabaos were not included in the list of lost,
stolen and questionable animals; one from the LIvestock inspector, Bureau of Animal
Industry of Libmanan, Camarines Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos, while passing
at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's
police station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The
confiscation was basis on the aforementioned Executive Order No. 626-A which provides
"that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no
carabeef shall be transported from one province to another. The carabaos or carabeef
transported in violation of this Executive Order as amended shall be subject to confiscation
and forfeiture by the government to be distributed ... to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a
farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the
recovery of the carabaos allegedly valued at P70,000 and damages of P92,000. The replevin
order could not be executed by the sheriff. In his order of April 25, 1983 Judge Domingo
Medina Angeles, who heard the case at Daet and who was later transferred to Caloocan City,
dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the
Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42
of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans on April 2,
1982 because, as already noted, it is a penal regulation published more than two months
later in the Official Gazette dated June 14, 1982. It became effective only fifteen days
thereafter as provided in article 2 of the Civil Code and section 11 of the Revised
Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations
which prescribe penalties. Publication is necessary to apprise the public of the contents of
the regulations and make the said penalties binding on the persons affected thereby. (People
vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573;
Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad (1
Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central
Bank Circular No. 20 and sentenced to six months' imprisonment and to pay a fine of P1,000,
was acquitted by this Court because the circular was published in the Official Gazette three
months after his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because its confiscation and
forfeiture provision or sanction makes it a penal statute. Justice and fairness dictate that the
public must be informed of that provision by means of publication in the Gazette before
violators of the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and
Philippine Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the respondents,
do not involve the enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders having general
applicability should be published in the Official Gazette. It provides that "every order or
document which shag prescribe a penalty shall be deemed to have general applicability and
legal effect."
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao which
is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each
carabao from the twenty six farmers who used them. The farmers should not enrich
themselves at the expense of the Pesigans.

Indeed, the practice has always been to publish executive orders in the Gazette. Section 551
of the Revised Administrative Code provides that even bureau "regulations and orders shall
become effective only when approved by the Department Head and published in the Official
Separate Opinions
Gazette or otherwise publicly promulgated". (See Commissioner of Civil Service vs. Cruz, 122
Phil. 1015.)
ABAD SANTOS, J., concurring:
In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte
and the head of the Public Affairs Office of the Ministry of Agriculture were unaware of The Pesigans are entitled to the return of their carabaos or the value of each carabao which
Executive Order No. 626-A. The Pesigans could not have been expected to be cognizant of is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each
such an executive order. carabao from the twenty six farmers who used them. The farmers should not enrich
themselves at the expense of the Pesigans.
It results that they have a cause of action for the recovery of the carabaos. The summary
confiscation was not in order. The recipients of the carabaos should return them to the
Pesigans. However, they cannot transport the carabaos to Batangas because they are now
bound by the said executive order. Neither can they recover damages. Doctor Miranda and
Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the
carabaos are reversed and set aside. Respondents Miranda and Zenarosa are ordered to
restore the carabaos, with the requisite documents, to the petitioners, who as owners are
entitled to possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.

SO ORDERED.1äwphï1.ñët

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

De Castro, J., took no part.

Separate Opinions
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to
be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265,
286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429,
445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-
1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161,
173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239,
241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-
303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602,
609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-
940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532,
1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-
1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847,
1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510,
522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593,
594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94,
95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on
the ground that petitioners have no legal personality or standing to bring the instant petition.
The view is submitted that in the absence of any showing that petitioners are personally and
directly affected or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to institute this
mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section
3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a
right or office to which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant, immediately or at some other specified
time, to do the act required to be done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a
public right and its object is to compel the performance of a public duty, they need not show
any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, 3 this Court held that while the general rule is that "a writ of mandamus
would be granted to a private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be protected, independent of
that which he holds with the public at large," and "it is for the public officers exclusively to
apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the
real party in interest and the relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result, it being sufficient to show that
he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal
Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a
proper party to the mandamus proceedings brought to compel the Governor General to call
a special election for the position of municipal president in the town of Silay, Negros
Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought to
be enforced. If the general rule in America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason for the rule, because, if under
the particular circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for
the respondent. The circumstances which surround this case are different from those in the
United States, inasmuch as if the relator is not a proper party to these proceedings no other
person could be, as we have seen that it is not the duty of the law officer of the Government
to appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be
enforced by petitioners herein is a public right recognized by no less than the fundamental
law of the land. If petitioners were not allowed to institute this proceeding, it would indeed
be difficult to conceive of any other person to initiate the same, considering that the Solicitor
General, the government officer generally empowered to represent the people, has entered
his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in the Official Gazette is
not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil
Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said
article. In a long line of decisions,4 this Court has ruled that publication in the Official Gazette
is necessary in those cases where the legislation itself does not provide for its effectivity
date-for then the date of publication is material for determining its date of effectivity, which
is the fifteenth day following its publication-but not when the law itself provides for the date
when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity
of laws with the fact of publication. Considered in the light of other statutes applicable to the
issue at hand, the conclusion is easily reached that said Article 2 does not preclude the
requirement of publication in the Official Gazette, even if the law itself provides for the date
of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have no general applicability; [3]
decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law; and [5] such documents
or classes of documents as the President of the Philippines shall determine from time to time
to have general applicability and legal effect, or which he may authorize so to be published.
...
The clear object of the above-quoted provision is to give the general public adequate notice
of the various laws which are to regulate their actions and conduct as citizens. Without such
notice and publication, there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen
for the transgression of a law of which he had no notice whatsoever, not even a constructive
one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of
laws taken so vital significance that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and
for the diligent ones, ready access to the legislative records—no such publicity accompanies
the law-making process of the President. Thus, without publication, the people have no
means of knowing what presidential decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents and texts of such decrees. As
the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas
de conformidad con las mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published
in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials
an imperative duty. That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality. The law itself
makes a list of what should be published in the Official Gazette. Such listing, to our mind,
leaves respondents with no discretion whatsoever as to what must be included or excluded
from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability"
is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or
penalties for their violation or otherwise impose a burden or. the people, such as tax and
revenue measures, fall within this category. Other presidential issuances which apply only to
particular persons or class of persons such as administrative and executive orders need not
be published on the assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a rule of law that before a person
may be bound by law, he must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the
law of the land, the requirement of due process and the Rule of Law demand that the Official
Gazette as the official government repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may know where to obtain their official
and specific contents.
The Court therefore declares that presidential issuances of general application, which have
not been published, shall have no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's declaration of by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino,
invalidity apply to P.D.s which had been enforced or implemented prior to their publication. ruled that "publication is necessary to apprise the public of the contents of [penal]
The answer is all too familiar. In similar situations in the past this Court had taken the regulations and make the said penalties binding on the persons affected thereby. " The
pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 cogency of this holding is apparently recognized by respondent officials considering the
to wit: manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall
take effect immediately.
The courts below have proceeded on the theory that the Act of Congress, having been found
to be unconstitutional, was not a law; that it was inoperative, conferring no rights and
imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby
County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
clear, however, that such broad statements as to the effect of a determination of unpublished presidential issuances which are of general application, and unless so published,
unconstitutionality must be taken with qualifications. The actual existence of a statute, prior they shall have no binding force and effect.
to such a determination, is an operative fact and may have consequences which cannot justly
be ignored. The past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects-with respect
to particular conduct, private and official. Questions of rights claimed to have become
SO ORDERED.
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its previous
application, demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is manifest from
numerous decisions that an all-inclusive statement of a principle of absolute retroactive Relova, J., concurs.
invalidity cannot be justified.

Aquino, J., took no part.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of
a party under the Moratorium Law, albeit said right had accrued in his favor before said law
was declared unconstitutional by this Court.

Concepcion, Jr., J., is on leave.

Similarly, the implementation/enforcement of presidential decrees prior to their publication

in the Official Gazette is "an operative fact which may have consequences which cannot be
justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-
inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have
not been so published. 10 Neither the subject matters nor the texts of these PDs can be Separate Opinions
ascertained since no copies thereof are available. But whatever their subject matter may be,
it is undisputed that none of these unpublished PDs has ever been implemented or enforced

FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly
impose the requirement of publication in the Official Gazette for unpublished "presidential
issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly
pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as
to what is required for any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its
first paragraph sets forth what to me is the constitutional doctrine applicable to this case.
Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. 3 It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared
to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once
published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance with their
provisions. If no legal consequences could attach due to lack of publication in the Official
Gazette, then serious problems could arise. Previous transactions based on such "Presidential
Issuances" could be open to question. Matters deemed settled could still be inquired into. I
am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as
such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not
always be successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology,
there could arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws
taking effect after fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil
Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have
the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette
would be devoid of any legal character. That would be, in my opinion, to go too far. It may be
fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to
yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in
this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed
that "it is an elementary rule of fair play and justice that a reasonable opportunity to be
informed must be afforded to the people who are commanded to obey before they can be
punished for its violation,1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal provisions, a
law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code
and the Revised Administrative Code, there would be no basis nor justification for the
corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions
of the law are ascertainable from the public and official repository where they are duly
published) that "Ignorance of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws
which are silent as to their effectivity [date] need be published in the Official Gazette for
their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that
"laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided
by the law itself. This proviso perforce refers to a law that has been duly published pursuant
to the basic constitutional requirements of due process. The best example of this is the Civil
Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year
[not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or
decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the
Civil Code's indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to the date of effectivity mentioned in the
decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the
guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said laws already
provide for their effectivity date.
GUTIERREZ, Jr., J., concurring:

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two I concur insofar as publication is necessary but reserve my vote as to the necessity of such
things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in publication being in the Official Gazette.
provision as to when it will take effect. Secondly, it clearly recognizes that each law may
provide not only a different period for reckoning its effectivity date but also a different mode
of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official
Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to DE LA FUENTE, J., concurring:
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency,
provides for its sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official Gazette, among I concur insofar as the opinion declares the unpublished decrees and issuances of a public
them, "important legislative acts and resolutions of a public nature of the Congress of the nature or general applicability ineffective, until due publication thereof.
Philippines" and "all executive and administrative orders and proclamations, except such as
have no general applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same
footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision
of its own as to when and how it will take effect. Only a higher law, which is the Constitution,
can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication
in the Official Gazette.

Separate Opinions

Cuevas and Alampay, JJ., concur.

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly
impose the requirement of publication in the Official Gazette for unpublished "presidential
issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under all
circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that
such a legislative or presidential act is bereft of the attribute of effectivity unless published in
the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly
pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as
to what is required for any statute or presidential act to be impressed with binding force or
effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its
first paragraph sets forth what to me is the constitutional doctrine applicable to this case.
Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite
for their effectivity, unlike some Constitutions elsewhere. It may be said though that the
guarantee of due process requires notice of laws to affected Parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2
unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared
to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once
published therein there is the ascertainable mode of determining the exact date of its
effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in accordance with their
provisions. If no legal consequences could attach due to lack of publication in the Official
Gazette, then serious problems could arise. Previous transactions based on such "Presidential
Issuances" could be open to question. Matters deemed settled could still be inquired into. I
am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as
such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not
always be successfully invoked. There must still be that process of balancing to determine
whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology,
there could arise then a question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the Official
Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws
taking effect after fifteen days following the completion of their publication in the Official
Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil
Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have
the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette
would be devoid of any legal character. That would be, in my opinion, to go too far. It may be
fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to
yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in
this separate opinion.
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all. 3 It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently stressed
that "it is an elementary rule of fair play and justice that a reasonable opportunity to be
informed must be afforded to the people who are commanded to obey before they can be
punished for its violation,1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal provisions, a
law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code
and the Revised Administrative Code, there would be no basis nor justification for the
corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions
of the law are ascertainable from the public and official repository where they are duly
published) that "Ignorance of the law excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws
which are silent as to their effectivity [date] need be published in the Official Gazette for
their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that
"laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided
by the law itself. This proviso perforce refers to a law that has been duly published pursuant
to the basic constitutional requirements of due process. The best example of this is the Civil
Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year
[not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or
decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the
Civil Code's indispensable and essential requirement of prior publication in the Official
Gazette by the simple expedient of providing for immediate effectivity or an earlier
effectivity date in the law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to the date of effectivity mentioned in the
decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the
guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. Neither is the publication of laws in the Official
Gazette required by any statute as a prerequisite for their effectivity, if said laws already
provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two
things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in
provision as to when it will take effect. Secondly, it clearly recognizes that each law may
provide not only a different period for reckoning its effectivity date but also a different mode
of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official
Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency,
provides for its sale and distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Official Gazette, among
them, "important legislative acts and resolutions of a public nature of the Congress of the
Philippines" and "all executive and administrative orders and proclamations, except such as
have no general applicability." It is noteworthy that not all legislative acts are required to be
published in the Official Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official Gazette is essential for the
effectivity of laws. This is as it should be, for all statutes are equal and stand on the same
footing. A law, especially an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision
of its own as to when and how it will take effect. Only a higher law, which is the Constitution,
can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication
in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public
nature or general applicability ineffective, until due publication thereof.
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA
CRUZ, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of
presidential decrees which they claimed had not been published as required by law. The
government argued that while publication was necessary as a rule, it was not so when it was
"otherwise provided," as when the decrees themselves declared that they were to become
effective immediately upon their approval. In the decision of this case on April 24, 1985, the
Court affirmed the necessity for the publication of some of these decrees, declaring in the
dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published,
they shall have no binding force and effect.
The petitioners are now before us again, this time to move for reconsideration/clarification
of that decision. 1 Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction
between laws of general applicability and those which are not; that publication means
complete publication; and that the publication must be made forthwith in the Official
Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was
a request for an advisory opinion and should therefore be dismissed, and, on the merits, that
the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the
publication required therein was not always imperative; that publication, when necessary,
did not have to be made in the Official Gazette; and that in any case the subject decision was
concurred in only by three justices and consequently not binding. This elicited a Reply 4
refuting these arguments. Came next the February Revolution and the Court required the
new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3,
Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for
the internal administration of a government agency or for particular persons did not have to
be 'Published; that publication when necessary must be in full and in the Official Gazette; and
that, however, the decision under reconsideration was not binding because it was not
supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
penal measures, like a law on prescription, which must also be communicated to the persons
they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of
course presupposes that the law has been published if the presumption is to have any legal
justification at all. It is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the legislative enactments of the
government.

ART. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.
After a careful study of this provision and of the arguments of the parties, both on the
original petition and on the instant motion, we have come to the conclusion and so hold, that
the clause "unless it is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective immediately upon approval, or on any
other date, without its previous publication.
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual, like
a relative of President Marcos who was decreed instant naturalization. It surely cannot be
said that such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if he is a proper party,
even in the courts of justice. In fact, a law without any bearing on the public would be invalid
as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might be directly applicable
only to one individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin fifteen days after
Publication is indispensable in every case, but the legislature may in its discretion provide
publication unless a different effectivity date is fixed by the legislature.
that the usual fifteen-day period shall be shortened or extended. An example, as pointed out
by the present Chief Justice in his separate concurrence in the original decision, 6 is the Civil
Code which did not become effective after fifteen days from its publication in the Official
Gazette but "one year after such publication." The general rule did not apply because it was
"otherwise provided. " Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. administrative rules and
regulations must a also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason. is that such omission would offend due process insofar as it would
deny the public knowledge of the laws that are supposed to govern the legislature could
validly provide that a law e effective immediately upon its approval notwithstanding the lack
of publication (or after an unreasonably short period after publication), it is not unlikely that Interpretative regulations and those merely internal in nature, that is, regulating only the
persons not aware of it would be prejudiced as a result and they would be so not because of personnel of the administrative agency and not the public, need not be published. Neither is
a failure to comply with but simply because they did not know of its existence, Significantly, publication required of the so-called letters of instructions issued by administrative superiors
this is not true only of penal laws as is commonly supposed. One can think of many non-
concerning the rules or guidelines to be followed by their subordinates in the performance of There is much to be said of the view that the publication need not be made in the Official
their duties. Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of
general circulation could better perform the function of communicating, the laws to the
people as such periodicals are more easily available, have a wider readership, and come out
regularly. The trouble, though, is that this kind of publication is not the one required or
authorized by existing law. As far as we know, no amendment has been made of Article 2 of
Accordingly, even the charter of a city must be published notwithstanding that it applies to
the Civil Code. The Solicitor General has not pointed to such a law, and we have no
only a portion of the national territory and directly affects only the inhabitants of that place.
information that it exists. If it does, it obviously has not yet been published.
All presidential decrees must be published, including even, say, those naming a public place
after a favored individual or exempting him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be published if they are meant not merely to
interpret but to "fill in the details" of the Central Bank Act which that body is supposed to
enforce. At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or
modify it if we find it impractical. That is not our function. That function belongs to the
legislature. Our task is merely to interpret and apply the law as conceived and approved by
the political departments of the government in accordance with the prescribed procedure.
Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the
However, no publication is required of the instructions issued by, say, the Minister of Social
publication of laws must be made in the Official Gazett and not elsewhere, as a requirement
Welfare on the case studies to be made in petitions for adoption or the rules laid down by
for their effectivity after fifteen days from such publication or after a different period
the head of a government agency on the assignments or workload of his personnel or the
provided by the legislature.
wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule
but by the Local Government Code.

We also hold that the publication must be made forthwith or at least as soon as possible, to
give effect to the law pursuant to the said Article 2. There is that possibility, of course,
We agree that publication must be in full or it is no publication at all since its purpose is to
although not suggested by the parties that a law could be rendered unenforceable by a mere
inform the public of the contents of the laws. As correctly pointed out by the petitioners, the
refusal of the executive, for whatever reason, to cause its publication as required. This is a
mere mention of the number of the presidential decree, the title of such decree, its
matter, however, that we do not need to examine at this time.
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere
supplement of the Official Gazette cannot satisfy the publication requirement. This is not
even substantial compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and
interest, was "published" by the Marcos administration. 7 The evident purpose was to Finally, the claim of the former Solicitor General that the instant motion is a request for an
withhold rather than disclose information on this vital law. advisory opinion is untenable, to say the least, and deserves no further comment.

Coming now to the original decision, it is true that only four justices were categorically for
publication in the Official Gazette 8 and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10 and
another merely acknowledged the need for due publication without indicating where it
should be made. 11 It is therefore necessary for the present membership of this Court to
arrive at a clear consensus on this matter and to lay down a binding decision supported by
the necessary vote.
The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to
public cognizance. This has to be so if our country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review
the work of their delegates and to ratify or reject it according to their lights, through their
freedom of expression and their right of suffrage. This they cannot do if the acts of the
legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and contents are confirmed by a valid
publication intended to make full disclosure and give proper notice to the people. The furtive
law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon
their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to
become effective only after fifteen days from their publication, or on another date specified
by the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ.,
concur.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice
Isagani A. Cruz, I would like to add a few observations. Even as a Member of the defunct
Batasang Pambansa, I took a strong stand against the insidious manner by which the
previous dispensation had promulgated and made effective thousands of decrees, executive
orders, letters of instructions, etc. Never has the law-making power which traditionally
belongs to the legislature been used and abused to satisfy the whims and caprices of a one-
man legislative mill as it happened in the past regime. Thus, in those days, it was not
surprising to witness the sad spectacle of two presidential decrees bearing the same number,
although covering two different subject matters. In point is the case of two presidential
decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship
to Michael M. Keon the then President's nephew and the other imposing a tax on every
motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of
PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players
Jeffrey Moore and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be
made effective seeks prevent abuses on the part of the lawmakers and, at the same time,
ensures to the people their constitutional right to due process and to information on matters
of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A.
Cruz. At the same time, I wish to add a few statements to reflect my understanding of what
the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval
thereof, is properly interpreted as coming into effect immediately upon publication thereof
in the Official Gazette as provided in Article 2 of the Civil Code. Such statute, in other words,
should not be regarded as purporting literally to come into effect immediately upon its
approval or enactment and without need of publication. For so to interpret such statute
would be to collide with the constitutional obstacle posed by the due process clause. The
enforcement of prescriptions which are both unknown to and unknowable by those
subjected to the statute, has been throughout history a common tool of tyrannical
governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official
Gazette, as distinguished from any other medium such as a newspaper of general circulation,
is embodied in a statutory norm and is not a constitutional command. The statutory norm is
set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of
Commonwealth Act No. 638 and Section 35 of the Revised Administrative Code. A
specification of the Official Gazette as the prescribed medium of publication may therefore
be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be
amended by a subsequent statute providing, for instance, for publication either in the Official
Gazette or in a newspaper of general circulation in the country. Until such an amendatory
statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected
in the Official Gazette and not in any other medium.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice
Isagani A. Cruz, I would like to add a few observations. Even as a Member of the defunct
Batasang Pambansa, I took a strong stand against the insidious manner by which the
previous dispensation had promulgated and made effective thousands of decrees, executive
orders, letters of instructions, etc. Never has the law-making power which traditionally
belongs to the legislature been used and abused to satisfy the whims and caprices of a one-
man legislative mill as it happened in the past regime. Thus, in those days, it was not
surprising to witness the sad spectacle of two presidential decrees bearing the same number,
although covering two different subject matters. In point is the case of two presidential
decrees bearing number 1686 issued on March 19, 1980, one granting Philippine citizenship
to Michael M. Keon the then President's nephew and the other imposing a tax on every
motor vehicle equipped with airconditioner. This was further exacerbated by the issuance of
PD No. 1686-A also on March 19, 1980 granting Philippine citizenship to basketball players
Jeffrey Moore and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be
made effective seeks prevent abuses on the part of the lawmakers and, at the same time,
ensures to the people their constitutional right to due process and to information on matters
of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A.
Cruz. At the same time, I wish to add a few statements to reflect my understanding of what
the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval
thereof, is properly interpreted as coming into effect immediately upon publication thereof
in the Official Gazette as provided in Article 2 of the Civil Code. Such statute, in other words,
should not be regarded as purporting literally to come into effect immediately upon its
approval or enactment and without need of publication. For so to interpret such statute
would be to collide with the constitutional obstacle posed by the due process clause. The
enforcement of prescriptions which are both unknown to and unknowable by those
subjected to the statute, has been throughout history a common tool of tyrannical
governments. Such application and enforcement constitutes at bottom a negation of the
fundamental principle of legality in the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official
Gazette, as distinguished from any other medium such as a newspaper of general circulation,
is embodied in a statutory norm and is not a constitutional command. The statutory norm is
set out in Article 2 of the Civil Code and is supported and reinforced by Section 1 of
Commonwealth Act No. 638 and Section 35 of the Revised Administrative Code. A
specification of the Official Gazette as the prescribed medium of publication may therefore
be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be
amended by a subsequent statute providing, for instance, for publication either in the Official
Gazette or in a newspaper of general circulation in the country. Until such an amendatory
statute is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected
in the Official Gazette and not in any other medium.
 Republic of the Philippines Again, on 7 January 1986, President Marcos issued Proclamation No. 2476, further amending
SUPREME COURT Proclamation No. 423, which excluded barangaysLower Bicutan, Upper Bicutan and Signal
Manila Village from the operation of Proclamation No. 423 and declared it open for disposition
under the provisions of Republic Act Nos. (R.A.) 274 and 730.
FIRST DIVISION
At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum,
G.R. No. 187587 June 5, 2013 which reads:

NAGKAKAISANG MARALITA NG SITIO MASIGASIG, INC., Petitioner, "P.S. – This includes Western Bicutan
vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF (SGD.) Ferdinand E. Marcos"2
NATIONAL DEFENSE, Respondent.
The crux of the controversy started when Proclamation No. 2476 was published in the
x-----------------------x Official Gazette3 on 3 February 1986, without the above-quoted addendum.

G.R. No. 187654
WESTERN BICUTAN LOT OWNERS ASSOCIATION, INC., represented by its Board of
Directors, Petitioner,
vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF
NATIONAL DEFENSE, Respondent.
DECISION
SERENO, CJ.:
Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing
the Decision1 promulgated on 29 April 2009 of the Court of Appeals in CA-G.R. SP No. 97925.
THE FACTS
The facts, as culled from the records, are as follows:
On 12 July 1957, by virtue of Proclamation No. 423, President Carlos P. Garcia reserved
parcels of land in the Municipalities of Pasig, Taguig, Parañaque, Province of Rizal and Pasay
City for a military reservation. The military reservation, then known as Fort William McKinley,
was later on renamed Fort Andres Bonifacio (Fort Bonifacio).
On 28 May 1967, President Ferdinand E. Marcos (President Marcos) issued Proclamation No.
208, amending Proclamation No. 423, which excluded a certain area of Fort Bonifacio and
reserved it for a national shrine. The excluded area is now known as Libingan ng mga Bayani,
which is under the administration of herein respondent Military Shrine Services – Philippine
Veterans Affairs Office (MSS-PVAO).
Years later, on 16 October 1987, President Corazon C. Aquino (President Aquino) issued
Proclamation No. 172 which substantially reiterated Proclamation No. 2476, as published,
but this time excluded Lots 1 and 2 of Western Bicutan from the operation of Proclamation
No. 423 and declared the said lots open for disposition under the provisions of R.A. 274 and
730.
Memorandum Order No. 119, implementing Proclamation No. 172, was issued on the same
day.
Through the years, informal settlers increased and occupied some areas of Fort Bonifacio
including portions of the Libingan ng mga Bayani. Thus, Brigadier General Fredelito Bautista
issued General Order No. 1323 creating Task Force Bantay (TFB), primarily to prevent further
unauthorized occupation and to cause the demolition of illegal structures at Fort Bonifacio.
On 27 August 1999, members of petitioner Nagkakaisang Maralita ng Sitio Masigasig, Inc.
(NMSMI) filed a Petition with the Commission on Settlement of Land Problems (COSLAP),
where it was docketed as COSLAP Case No. 99-434. The Petition prayed for the following: (1)
the reclassification of the areas they occupied, covering Lot 3 of SWO-13-000-298 of Western
Bicutan, from public land to alienable and disposable land pursuant to Proclamation No.
2476; (2) the subdivision of the subject lot by the Director of Lands; and (3) the Land
Management Bureau’s facilitation of the distribution and sale of the subject lot to its bona
fide occupants.4
On 1 September 2000, petitioner Western Bicutan Lot Owners Association, Inc. (WBLOAI)
filed a Petition-in-Intervention substantially praying for the same reliefs as those prayed for
by NMSMI with regard to the area the former then occupied covering Lot 7 of SWO-00-
001302 in Western Bicutan.5
Thus, on 1 September 2006, COSLAP issued a Resolution6 granting the Petition and declaring
the portions of land in question alienable and disposable, with Associate Commissioner Lina
Aguilar-General dissenting.7
The COSLAP ruled that the handwritten addendum of President Marcos was an integral part WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT
of Proclamation No. 2476, and was therefore, controlling. The intention of the President PROCLAMATION NO. 2476 DID NOT INCLUDE ANY PORTION OF WESTERN BICUTAN AS THE
could not be defeated by the negligence or inadvertence of others. Further, considering that HANDWRITTEN NOTATION BY PRESIDENT MARCOS ON THE SAID PROCLAMATION WAS NOT
Proclamation PUBLISHED IN THE OFFICIAL GAZETTE.

No. 2476 was done while the former President was exercising legislative powers, it could not II
be amended, repealed or superseded, by a mere executive enactment. Thus, Proclamation
No. 172 could not have superseded much less displaced Proclamation No. 2476, as the latter WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT
was issued on October 16, 1987 when President Aquino’s legislative power had ceased. PROCLAMATION NO. 172 LIKEWISE EXCLUDED THE PORTION OF LAND OCCUPIED BY
MEMBER OF HEREIN PETITIONER.
In her Dissenting Opinion, Associate Commissioner Lina AguilarGeneral stressed that
pursuant to Article 2 of the Civil Code, publication is indispensable in every case. Likewise, III
she held that when the provision of the law is clear and unambiguous so that there is no
occasion for the court to look into legislative intent, the law must be taken as it is, devoid of
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT
judicial addition or subtraction.8 Finally, she maintained that the Commission had no
THE HON. COSLAP HAS BROAD POWERS TO RECOMMEND TO THE PRESIDENT >INNOVATIVE
authority to supply the addendum originally omitted in the published version of
MEASURES TO RESOLVE EXPEDITIOUSLY VARIOUS LAND CASES. 14
Proclamation No. 2476, as to do so would be tantamount to encroaching on the field of the
legislature.
On the other hand, petitioner WBLOAI raises this sole issue:
Herein respondent MSS-PVAO filed a Motion for Reconsideration,9 which was denied by the
COSLAP in a Resolution dated 24 January 2007.10 WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
SUBJECT PROPERTY WAS NOT DECLARED ALIENABLE AND DISPOSABLE BY VIRTUE OF
PROCLAMATION NO. 2476 BECAUSE THE HANDWRITTEN ADDENDUM OF PRESIDENT
MSS-PVAO filed a Petition with the Court of Appeals seeking to reverse the COSLAP
FERDINAND E. MARCOS INCLUDING WESTERN BICUTAN IN PROCLAMATION NO. 2476 WAS
Resolutions dated 1 September 2006 and 24 January 2007.
NOT INCLUDED IN THE PUBLICATION.15

Thus, on 29 April 2009, the then Court of Appeals First Division rendered the assailed
Both Petitions boil down to the principal issue of whether the Court of Appeals erred in ruling
Decision granting MSS-PVAO’s Petition, the dispositive portion of which reads:
that the subject lots were not alienable and disposable by virtue of Proclamation No. 2476 on
the ground that the handwritten addendum of President Marcos was not included in the
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby GRANTED. The Resolutions publication of the said law.
dated September 1, 2006 and January 24, 2007 issued by the Commission on the Settlement
of Land Problems in COSLAP Case No. 99-434 are hereby REVERSED and SET ASIDE. In lieu
THE COURT’S RULING
thereof, the petitions of respondents in COSLAP Case No. 99-434 are DISMISSED, for lack of
merit, as discussed herein. Further, pending urgent motions filed by respondents are likewise
We deny the Petitions for lack of merit.
DENIED. SO ORDERED.11 (Emphasis in the original)
Considering that petitioners were occupying Lots 3 and 7 of Western Bicutan (subject lots),
their claims were anchored on the handwritten addendum of President Marcos to
Both NMSMI12 and WBLOAI13 appealed the said Decision by filing their respective Petitions
Proclamation No. 2476. They allege that the former President intended to include all
for Review with this Court under Rule 45 of the Rules of Court.
Western Bicutan in the reclassification of portions of Fort Bonifacio as disposable public land
when he made a notation just below the printed version of Proclamation No. 2476.
THE ISSUES
However, it is undisputed that the handwritten addendum was not included when
Petitioner NMSMI raises the following issues: Proclamation No. 2476 was published in the Official Gazette.

I
The resolution of whether the subject lots were declared as reclassified and disposable lies in
the determination of whether the handwritten addendum of President Marcos has the force
and effect of law. In relation thereto, Article 2 of the Civil Code expressly provides:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year
after such publication.
Under the above provision, the requirement of publication is indispensable to give effect to
the law, unless the law itself has otherwise provided. The phrase "unless otherwise provided"
refers to a different effectivity date other than after fifteen days following the completion of
the law’s publication in the Official Gazette, but does not imply that the requirement of
publication may be dispensed with. The issue of the requirement of publication was already
settled in the landmark case Tañada v. Hon. Tuvera,16 in which we had the occasion to rule
thus:
Publication is indispensable in every case, but the legislature may in its discretion provide
that the usual fifteen-day period shall be shortened or extended. An example, as pointed out
by the present Chief Justice in his separate concurrence in the original decision, is the Civil
Code which did not become effective after fifteen days from its publication in the Official
Gazette but "one year after such publication." The general rule did not apply because it was
"otherwise provided."
It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason is that such omission would offend due process insofar as it would
deny the public knowledge of the laws that are supposed to govern it. Surely, if the
legislature could validly provide that a law shall become effective immediately upon its
approval notwithstanding the lack of publication (or after an unreasonably short period after
publication), it is not unlikely that persons not aware of it would be prejudiced as a result;
and they would be so not because of a failure to comply with it but simply because they did
not know of its existence. Significantly, this is not true only of penal laws as is commonly
supposed. One can think of many non-penal measures, like a law on prescription, which must
also be communicated to the persons they may affect before they can begin to operate.
xxxx
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual, like
a relative of President Marcos who was decreed instant naturalization. It surely cannot be
said that such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if he is a proper party,
even in the courts of justice. In fact, a law without any bearing on the public would be invalid
as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might be directly applicable
only to one individual, or some of the people only, and not to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
xxxx
Accordingly, even the charter of a city must be published notwithstanding that it applies to
only a portion of the national territory and directly affects only the inhabitants of that place.
All presidential decrees must be published, including even, say, those naming a public place
after a favored individual or exempting him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be published if they are meant not merely to
interpret but to "fill in the details" of the Central Bank Act which that body is supposed to
enforce.
xxxx
We agree that the publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws. As correctly pointed out by the petitioners,
the mere mention of the number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere
supplement of the Official Gazette cannot satisfy the publication requirement.1âwphi1 This
is not even substantial compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and
interest, was "published" by the Marcos administration. The evident purpose was to
withhold rather than disclose information on this vital law.
xxxx
Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules
cannot be recognized as binding unless their existence and contents are confirmed by a valid
publication intended to make full disclosure and give proper notice to the people. The furtive
law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn.
(Emphases supplied)
Applying the foregoing ruling to the instant case, this Court cannot rely on a handwritten
note that was not part of Proclamation No. 2476 as published. Without publication, the note
never had any legal force and effect.
Furthermore, under Section 24, Chapter 6, Book I of the Administrative Code, "the
publication of any law, resolution or other official documents in the Official Gazette shall be
prima facie evidence of its authority." Thus, whether or not President Marcos intended to
include Western Bicutan is not only irrelevant but speculative. Simply put, the courts may not
speculate as to the probable intent of the legislature apart from the words appearing in the
law.17 This Court cannot rule that a word appears in the law when, evidently, there is none.
In Pagpalain Haulers, Inc. v. Hon. Trajano,18 we ruled that "under Article 8 of the Civil Code,
'judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines.' This does not mean, however, that courts can create law.
The courts exist for interpreting the law, not for enacting it. To allow otherwise would be
violative of the principle of separation of powers, inasmuch as the sole function of our courts
is to apply or interpret the laws, particularly where gaps or lacunae exist or where
ambiguities becloud issues, but it will not arrogate unto itself the task of legislating." The
remedy sought in these Petitions is not judicial interpretation, but another legislation that
would amend the law ‘to include petitioners' lots in the reclassification.

WHEREFORE, in view of the foregoing, the instant petitions are hereby DENIED for lack of
merit. The assailed Decision of the Court of Appeals in CA-G.R. CV No. 97925 dated 29 April
2009 is AFFIRMED in toto. Accordingly, this Court's status quo order dated 17 June 2009 is
hereby LIFTED. Likewise, all pending motions to cite respondent in contempt is DENIED,
having been rendered moot. No costs.

SO ORDERED.
Republic of the Philippines

SUPREME COURT The first three grounds were overruled by this Court when it held that the questioned
provision is a valid limitation on the due process, freedom of expression, freedom of
Manila association, freedom of assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils, namely, the prostitution
of electoral process and denial of the equal protection of the laws. Moreover, under the
balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates who must be "beholden to
EN BANC no one but to God, country and conscience," are interests that should be accorded primacy.1

G.R. No. L-32485 October 22, 1970 The petitioner should therefore be accordingly guided by the pronouncements in the cases of
Imbong and Gonzales. 2

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND
DUTIES UNDER SEC. 8 OF R.A. No. 6132. The claim of petitioner that the challenged provision constitutes an ex post facto law is
likewise untenable.

KAY VILLEGAS KAMI, INC., petitioner.

An ex post facto law is one which:.

MAKASIAR, J.:.
(1) makes criminal an act done before the passage of the law and which was innocent when
done, and punishes such an act;

This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly
recognized and existing non-stock and non-profit corporation created under the laws of the
land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a (2) aggravates a crime, or makes it greater than it was, when committed;
declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition,
petitioner avers that it has printed materials designed to propagate its ideology and program
of government, which materials include Annex B; and that in paragraph 11 of said petition,
petitioner intends to pursue its purposes by supporting delegates to the Constitutional
Convention who will propagate its ideology. (3) changes the punishment and inflicts a greater punishment than the law annexed to the
crime when committed;

Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first
paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of (4) alters the legal rules of evidence, and authorizes conviction upon less or different
association, and freedom of expression and that it is an ex post facto law. testimony than the law required at the time of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of
amnesty.3

Separate Opinions
From the aforesaid definition as well as classification of ex post facto laws, the constitutional
inhibition refers only to criminal laws which are given retroactive effect.4

While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including
Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the
law and not those perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried FERNANDO, J., concurring and dissenting:
out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective
upon its approval. It was approved on August 24, 1970.

Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432
and Gonzales v. Comelec, L-32443.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A.
No. 6132 is not unconstitutional. Without costs.

BARREDO, J., dissenting:

Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.

Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
case, dissents, even as agrees that Republic Act 6132 is not ex post facto.
Zaldivar, J., reserves his vote.

VILLAMOR, J., concurring:

Concepcion, C.J., is on leave.

Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.

TEEHANKEE, J., dissenting:
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said cases, 2
I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3
that the challenged provision, together with the Act's other restrictions and strictures
enumerated therein, "oppressively and unreasonably straitjacket the candidates as well as
the electorate and gravely violate the constitutional guaranties of freedom of expression,
freedom of the press and freedom of association, and, deny due process and the equal
protection of the laws."
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of its
broad law-making authority, the power to strike down at any time associations and societies
by the simple expedient of declaring their purposes or certain activities, not wrong per se as
"contrary to law" or mala prohibita. I believe that such a concept begs the question.
Obviously, the word "law" in the qualifying clause "for purposes not contrary to law" does
not mean that an enactment of the legislature forecloses the question with finality and
sounds the death-knell. Laws that would regulate the purposes for which associations and
societies may be formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge freedom of speech
and press.5

I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.

# Separate Opinions

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales
that "(W)hile it may be true that a party's support of a candidate is not wrong per se, it is
equally true that Congress in the exercise of the broad law-making authority can declare FERNANDO, J., concurring and dissenting:
certain acts as mala prohibita when justified by the exigencies of the times. One such act is
the party or organization support prescribed in Sec. 8(a), which ban is a valid limitation on
the freedom of association as well as expression, for the reasons aforestated. Senator
Tolentino emphasized that 'equality of chances may be better attained by banning all
organization support.' " Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432
and Gonzales v. Comelec, L-32443.

I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the BARREDO, J., dissenting:
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot be
invoked against it" since the Constitution decrees only that "(T)he right to form associations Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this
or societies for purposes not contrary to law shall not be abridged."4 case, dissents, even as agrees that Republic Act 6132 is not ex post facto.

Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of VILLAMOR, J., concurring:
association which has its root in the Malolos Constitution would render sterile and
Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.
TEEHANKEE, J., dissenting:.
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of
section 8(a) of Republic Act 6132. Inasmuch as I was unable to participate in the said cases, 2
I have expressed my contrary view in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3
that the challenged provision, together with the Act's other restrictions and strictures
enumerated therein, "oppressively and unreasonably straitjacket the candidates as well as
the electorate and gravely violate the constitutional guaranties of freedom of expression,
freedom of the press and freedom of association, and, deny due process and the equal
protection of the laws."
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of
association which has its root in the Malolos Constitution would render sterile and
meaningless the Constitutional safeguard, should Congress be conceded, in the exercise of its
broad law-making authority, the power to strike down at any time associations and societies
by the simple expedient of declaring their purposes or certain activities, not wrong per se as
"contrary to law" or mala prohibita. I believe that such a concept begs the question.
Obviously, the word "law" in the qualifying clause "for purposes not contrary to law" does
not mean that an enactment of the legislature forecloses the question with finality and
sounds the death-knell. Laws that would regulate the purposes for which associations and
societies may be formed or would declare their purposes mala prohibita must pass the usual
constitutional test of reasonableness and furthermore, must not abridge freedom of speech
and press.5

I therefore dissent from the Court's decision at bar for the same reason and considerations
stated in my separate dissenting opinion in the case of Badoy.

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales
that "(W)hile it may be true that a party's support of a candidate is not wrong per se, it is
equally true that Congress in the exercise of the broad law-making authority can declare
certain acts as mala prohibita when justified by the exigencies of the times. One such act is
the party or organization support prescribed in Sec. 8(a), which ban is a valid limitation on
the freedom of association as well as expression, for the reasons aforestated. Senator
Tolentino emphasized that 'equality of chances may be better attained by banning all
organization support.' "

I trust that said statements were not intended, and should not be construed, as endorsing
the contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the
Constitution cannot be invoked for the right of association when the purpose is a malum
prohibitum because such purpose would be "contrary to law" " and "(O)nce the ban (on
party and organization support) is approved into law, the freedom of association cannot be
invoked against it" since the Constitution decrees only that "(T)he right to form associations
or societies for purposes not contrary to law shall not be abridged."4
Republic of the Philippines On December 3, 1975 an assistant city fiscal charged Caesar Puerto with estafa in the city
court of Cagayan de Oro City for having issued on October 16, 1974 two bouncing checks for
SUPREME COURT the total sum of P4, 966. 63 (Criminal Case No. 32140).

Manila

City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the accused had
waived the second stage of the preliminary investigation. He directed that the case be
elevated, for trial, to the court of First Instance or the Circuit Criminal Court.
SECOND DIVISION

Upon petition of the prosecution, the Court of first Instance of Misamis Oriental, Cagayan de
G.R. No. L-46228 January 17, 1978
Oro Branch VIII, in its order of February 3, 1977 returned the case to the city court because in
its opinion the case falls within the concurrent jurisdiction of the two courts and, the city
court, as the first court which took cognizance of the case, should try it.

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs. Disagreeing with the Court of First Instance, respondent city judge in his order of April 21,
1977 directed the re-elevation of the case. His view is that the case falls within the exclusive
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City), and CAESAR PUERTO, original jurisdiction of the Court of First Instance because estafa committed by the accused is
respondents. punishable by prision mayor medium under Presidential Decree No. 818 which took effect on
October 22, 1975 and which amended article 315 of the Revised Penal Code.

Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office of the City Fiscal of
Cagayan de Oro City for petitioner. That order of respondent judge is assailed in the petition for certiorari filed in this Court on
May 27, 1977 by the office of the city fiscal of Cagayan de Oro City.

Eric Menchavez for respondent Caesar Puerto.

We hold that the case was properly filed with the city court which has original jurisdiction
over it. The estafa imputed to Caesar Puerto is punishable under article 315 of the Revised
Penal Code by arresto mayor maximum to prision correccional minimum or four months and
one day to two years and four months.
AQUINO, J.:

The penalty of prision mayor medium, or eight years and one day to ten years, imposed by
This case is about the jurisdiction of a city court in estafa cases. Presidential Decree No. 818, applies only to swindling by means of issuing bouncing checks
which was committed or after October 22, 1975.
That increased penalty does not apply to the estafa committed by Puerto on October 16,
1974. To apply it to Puerto would make the decree an ex post facto law. Its retroactive
application is prohibited by articles 21 and 22 of the Revised Penal Code and section 12,
Article IV of the Constitution.

The city court has original jurisdiction over the case because the penultimate paragraph or
section 87 of the Judiciary Law, as amended by Republic Acts Nos. 2613 and 3828, provides
that "judges of city courts shall have like jurisdiction as the Court of First Instance to try
parties charged with an offense committed within their respective jurisdictions, in which the
penalty provided by law does not exceed prision correccional or imprisonment for not more
than six years or fine not exceeding six thousand pesos or both."

As section 87 itself shows, that jurisdiction is concurrent with the court of First Instance
which is empowered to try "all criminal cases in which the penalty provided by law is
imprisonment for more than six months, or a fine of more than two hundred pesos" (Sec.
44[f], Judiciary Law. See People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531).

It was not necessary for the city court to have conducted the preliminary investigation of the
case. The filing of the information by the fiscal presupposes that he had conducted the
requisite preliminary investigation pursuant to Rule 112 of the Rules of Court and Republic
Act No. 5180, as amended by Presidential Decree No. 77.

WHEREFORE, the order of the Court of First Instance, returning the case to the city court, is
affirmed and the two orders of the respondent city judge, elevating the case to the Court of
First Instance, are set aside. The city court is directed to try the case. No costs.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.

Santos, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18208 February 14, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a complaint was presented in
the Court of First Instance of the city of Manila, charging the defendants with a violation of
the Usury Law (Act No. 2655). Upon said complaint they were each arrested, arraigned, and
pleaded not guilty. The cause was finally brought on for trial on the 1st day of September,
1921. At the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of the crime
charged in the complaint and sentenced each of them to pay a fine of P120 and, in case of
insolvency, to suffer subsidiary imprisonment in accordance with the provisions of the law.
From that sentence each of the defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged usurious interest
was collected was executed before Act No. 2655 was adopted; (b) that at the time said
contract was made (December 30, 1915), there was no usury law in force in the Philippine
Islands; (c) that said Act No. 2655 did not become effective until the 1st day of May, 1916, or
four months and a half after the contract in question was executed; (d) that said law could
have no retroactive effect or operation, and (e) that said law impairs the obligation of a
contract, and that for all of said reasons the judgment imposed by the lower court should be
revoked; that the complaint should be dismissed, and that they should each be discharged
from the custody of the law.
The essential facts constituting the basis of the criminal action are not in dispute, and may be
stated as follows: (1) That on the 30th day of December, 1915, the alleged offended persons
Bartolome Oliveros and Engracia Lianco executed and delivered to the defendants a contract
(Exhibit B) evidencing the fact that the former had borrowed from the latter the sum of P300,
and (2) that, by virtue of the terms of said contract, the said Bartolome Oliveros and Engracia
Lianco obligated themselves to pay to the defendants interest at the rate of five per cent
(5%) per month, payable within the first ten days of each and every month, the first payment
to be made on the 10th day of January, 1916. There were other terms in the contract which,
however, are not important for the decision in the present case.
The lower court, in the course of its opinion, stated that at the time of the execution and
delivery of said contract (Exhibit B), there was no law in force in the Philippine Islands
punishing usury; but, inasmuch as the defendants had collected a usurious rate of interest
after the adoption of the Usury Law in the Philippine Islands (Act No. 2655), they were guilty
of a violation of that law and should be punished in accordance with its provisions.
The law, we think, is well established that when a contract contains an obligation to pay
interest upon the principal, the interest thereby becomes part of the principal and is included
within the promise to pay. In other words, the obligation to pay interest on money due under
a contract, be it express or implied, is a part of the obligation of the contract. Laws adopted
after the execution of a contract, changing or altering the rate of interest, cannot be made to
apply to such contract without violating the provisions of the constitution which prohibit the
adoption of a law "impairing the obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-
1059.)
The obligation of the contract is the law which binds the parties to perform their agreement
if it is not contrary to the law of the land, morals or public order. That law must govern and
control the contract in every aspect in which it is intended to bear upon it, whether it affect
its validity, construction, or discharge. Any law which enlarges, abridges, or in any manner
changes the intention of the parties, necessarily impairs the contract itself. If a law impairs
the obligation of a contract, it is prohibited by the Jones Law, and is null and void. The laws in
force in the Philippine Islands prior to any legislation by the American sovereignty, prohibited
the Legislature from giving to any penal law a retroactive effect unless such law was
favorable to the person accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a new right of action,
must not be construed as having a retroactive effect. It is an elementary rule of contract that
the laws in force at the time the contract was made must govern its interpretation and
application. Laws must be construed prospectively and not retrospectively. If a contract is
legal at its inception, it cannot be rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired, which is prohibited by the
organic law of the Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552;
Aguilar vs. Rubiato and Gonzales Vila, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are prohibited in this
jurisdiction. Every law that makes an action, done before the passage of the law, and which
was innocent when done, criminal, and punishes such action, is an ex post facto law. In the
present case Act No. 2655 made an act which had been done before the law was adopted, a
criminal act, and to make said Act applicable to the act complained of would be to give it an
ex post facto operation. The Legislature is prohibited from adopting a law which will make an
act done before its adoption a crime. A law may be given a retroactive effect in civil action,
providing it is curative in character, but ex post facto laws are absolutely prohibited unless its
retroactive effect is favorable to the defendant.
For the reason, therefore, that the acts complained of in the present case were legal at the
time of their occurrence, they cannot be made criminal by any subsequent or ex post facto
legislation. What the courts may say, considering the provisions of article 1255 of the Civil
Code, when a civil action is brought upon said contract, cannot now be determined. A
contract may be annulled by the courts when it is shown that it is against morals or public
order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts
complained of by the defendants did not constitute a crime at the time they were
committed, and therefore the sentence of the lower court should be, and is hereby, revoked;
and it is hereby ordered and decreed that the complaint be dismissed, and that the
defendants be discharged from the custody of the law, with costs de oficio. So ordered.
Republic of the Philippines

SUPREME COURT Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Manila Act,1 which outlaws the Communist Party of the Philippines and other "subversive
associations," and punishes any person who "knowingly, willfully and by overt acts affiliates
himself with, becomes or remains a member" of the Party or of any other similar
"subversive" organization.
EN BANC

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act
was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On
March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a
prima facie case against Co, directed the Government prosecutors to file the corresponding
information. The twice-amended information, docketed as Criminal Case No. 27, recites:

G.R. Nos. L-32613-14 December 27, 1972

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of
Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
PEOPLE OF THE PHILIPPINES, petitioner, accused, feloniously became an officer and/or ranking leader of the Communist Party of the
Philippines, an outlawed and illegal organization aimed to overthrow the Government of the
vs. Philippines by means of force, violence, deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian regime and placing the government
under the control and domination of an alien power, by being an instructor in the Mao Tse
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Tung University, the training school of recruits of the New People's Army, the military arm of
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes the said Communist Party of the Philippines.
alias "Taba," respondents.

That in the commission of the above offense, the following aggravating circumstances are
Solicitor R. Mutuc for respondent Feliciano Co. present, to wit:

Jose W. Diokno for respondent Nilo Tayag. (a) That the crime has been committed in contempt of or with insult to public authorities;

CASTRO, J.:p (b) That the crime was committed by a band; and afford impunity.

I. Statement of the Case (c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court,
sharing the respondent Nilo Tayag and five others with subversion. After preliminary
investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the
Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order
dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA,
ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN
BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown,
for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the Province
of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines,
the above-named accused knowingly, willfully and by overt acts organized, joined and/or
remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive
organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER
MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as
a member and became an officer and/or ranking leader not only of the Communist Party of
the Philippines but also of the New People's Army, the military arm of the Communist Party
of the Philippines; and that all the above-named accused, as such officers and/or ranking
leaders of the aforestated subversive organizations, conspiring, confederating and mutually
helping one another, did then and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and
rise publicly and tumultuously and take up arms against the government, and/or engage in
rebellious conspiracies and riots to overthrow the government of the Republic of the
Philippines by force, violence, deceit, subversion and/or other illegal means among which are
the following:
1. On several occasions within the province of Tarlac, the accused conducted meetings
and/or seminars wherein the said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government of the Republic of the
Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this
end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in
barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed
revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other
illegal means to discredit and overthrow the Government of the Republic of the Philippines
and to established in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM
alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in
San Pablo City by recruiting members for the New People's Army, and/or by instigating and
inciting the people to organize and unite for the purpose of overthrowing the Government of
the Republic of the Philippines through armed revolution, deceit, subversion and/or other
illegal means, and establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the commission of the offense: (a) aid
of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was
employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds
that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not
expressed in the title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15,
1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague
and overboard, and dismissed the informations against the two accused. The Government
appealed. We resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto
law shall be enacted."2 A bill of attainder is a legislative act which inflicts punishment
without trial.3 Its essence is the substitution of a legislative for a judicial determination of
guilt.4 The constitutional ban against bills of attainder serves to implement the principle of
separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History
in perspective, bills of attainder were employed to suppress unpopular causes and political
minorities, 8 and it is against this evil that the constitutional prohibition is directed. The
singling out of a definite class, the imposition of a burden on it, and a legislative intent,
suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of
attainder because it "tars and feathers" the Communist Party of the Philippines as a
"continuing menace to the freedom and security of the country; its existence, a 'clear,
present and grave danger to the security of the Philippines.'" By means of the Act, the trial
court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by
pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is whether or not the
accused is a knowing and voluntary member, the law is still a bill of attainder because it has
expressly created a presumption of organizational guilt which the accused can never hope to
overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment.
What it does is simply to declare the Party to be an organized conspiracy for the overthrow
of the Government for the purposes of the prohibition, stated in section 4, against
membership in the outlawed organization. The term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact the Act applies not only to the Communist
Party of the Philippines but also to "any other organization having the same purpose and
their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-
Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held
to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or similar governing body,
business agent, manager, organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any labor organization.
during or for five years after the termination of his membership in the Communist Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000 or
imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its
members. Membership in the Party, without more, ipso facto disqualifies a person from
becoming an officer or a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and
Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power
under the Commerce Clause to enact legislation designed to keep from positions affecting
interstate commerce persons who may use of such positions to bring about political strikes.
In section 504, however, Congress has exceeded the authority granted it by the Constitution.
The statute does not set forth a generally applicable rule decreeing that any person who
commits certain acts or possesses certain characteristics (acts and characteristics which, in
Congress' view, make them likely to initiate political strikes) shall not hold union office, and
leaves to courts and juries the job of deciding what persons have committed the specified
acts or possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union office
without incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT
1357, lend a support to our conclusion. That case involved an appeal from an order by the
Control Board ordering the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is
to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed, dominated, or
controlled by the foreign government or foreign organization controlling the world
Communist movement referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782
(1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning
that sec. 3 does not specify the persons or groups upon which the deprivations setforth in
the Act are to be imposed, but instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-action organization," the
Court found the statutory definition not to be so narrow as to insure that the Party would
always come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now engages,
comes within the terms of the Act. If the Party should at anytime choose to abandon these
activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to
charge Communists in court, as the law alone, without more, would suffice to secure their
punishment. But the undeniable fact is that their guilt still has to be judicially established.
The Government has yet to prove at the trial that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined the Party, knowing its subversive character
and with specific intent to further its basic objective, i.e., to overthrow the existing
Government by force deceit, and other illegal means and place the country under the control
and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely
the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who
participate in the criminal covenant are liable. The contention would be correct if the statute
were construed as punishing mere membership devoid of any specific intent to further the
unlawful goals of the Party. 13 But the statute specifically required that membership must be
knowing or active, with specific intent to further the illegal objectives of the Party. That is
what section 4 means when it requires that membership, to be unlawful, must be shown to
have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific
intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This
constitutes an element of "membership" distinct from the ingredient of guilty knowledge.
The former requires proof of direct participation in the organization's unlawful activities,
while the latter requires proof of mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is
not enough to render it a bill of attainder. A statute prohibiting partners or employees of
securities underwriting firms from serving as officers or employees of national banks on the
basis of a legislative finding that the persons mentioned would be subject to the temptation
to commit acts deemed inimical to the national economy, has been declared not to be a bill
of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a
membership of at least twenty to register, and punishing any person who becomes a
member of such society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan.
17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor
unions to file with the Department of Labor affidavits of union officers "to the effect that
they are not members of the Communist Party and that they are not members of any
organization which teaches the overthrow of the Government by force or by any illegal or
unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial
does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified
those who had taken part in the rebellion against the Government of the United States
during the Civil War from holding office, 21 or from exercising their profession, 22 or which
prohibited the payment of further compensation to individuals named in the Act on the basis
of a finding that they had engages in subversive activities, 23 or which made it a crime for a
member of the Communist Party to serve as an officer or employee of a labor union, 24 have
been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain
as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is
not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring
every secret, oath-bound society with a membership of at least twenty to register, and
punishing any person who joined or remained a member of such a society failing to register.
While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK
exclusively. In sustaining the statute against the claim that it discriminated against the Ku
Klux Klan while exempting other secret, oath-bound organizations like masonic societies and
the Knights of Columbus, the United States Supreme Court relied on common knowledge of
the nature and activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just cited and reached the
conclusion that the classification was justified by a difference between the two classes of
associations shown by experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its purpose and
membership a cloak for acts and conduct inimical to personal rights and public welfare, and
(b) in the absence of such a tendency on the part of the other class. In pointing out this
difference one of the courts said of the Ku Klux Klan, the principal association in the included
class: "It is a matter of common knowledge that this organization functions largely at night,
its members disguised by hoods and gowns and doing things calculated to strike terror into
the minds of the people;" and later said of the other class: "These organizations and their
purposes are well known, many of them having been in existence for many years. Many of
them are oath-bound and secret. But we hear no complaint against them regarding violation
of the peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator is
concededly a member exercises activities tending to the prejudice and intimidation of sundry
classes of our citizens. But the legislation is not confined to this society;" and later said of the
other class: "Labor unions have a recognized lawful purpose. The benevolent orders
mentioned in the Benevolent Orders Law have already received legislative scrutiny and have
been granted special privileges so that the legislature may well consider them beneficial
rather than harmful agencies." The third court, after recognizing "the potentialities of evil in
secret societies," and observing that "the danger of certain organizations has been judicially
demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and
college fraternities have existed for many years, and, while not immune from hostile
criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as was readily available
including the published report of a hearing, before a committee of the House of
Representatives of the 57th Congress relating to the formation, purposes and activities of the
Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order
was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from
the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited
to native-born, gentile, protestant whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the Constitution of the United
States; in another exacted of its member an oath to shield and preserve "white supremacy;"
and in still another declared any person actively opposing its principles to be "a dangerous
ingredient in the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and
stimulating hurtful religious and race prejudices; that it was striving for political power and
assuming a sort of guardianship over the administration of local, state and national affairs;
and that at times it was taking into its own hands the punishment of what some of its
members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing
scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an
illegal association. 28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red China."
29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of
the Philippines and the organization of Communist fronts among youth organizations such as
the Kabataang Makabayan (KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the
existence of a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the Government of
the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within
the ambit of the prohibition against bills of attainder. It is also necessary that it must apply
retroactively and reach past conduct. This requirement follows from the nature of a bill of
attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a
bill of attainder was ... doubly objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute]
is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the
reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of
the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in the
service of the City of Los Angeles, in any office or department thereof, either elective or
appointive, who has within five (5) years prior to the effective date of this section advised,
advocated, or taught, or who may, after this section becomes effective, become a member of
or affiliated with any group, society, association, organization or party which advises,
advocates or teaches or has within said period of five (5) years advised, advocated, or taught
the overthrow by force or violence of the Government of the United States of America or of
the State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the
petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it
purported to apply restrospectively for a five-year period to its effective date. We assume
that under the Federal Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its adoption in 1941, advise,
advocate, or reach the violent overthrow of the Government or who are or become affiliated
with any group doing so. The provisions operating thus prospectively were a reasonable
regulation to protect the municipal service by establishing an employment qualification of
loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which petitioners were removed,
the statute in the Lovett case did not declare general and prospectively operative standards
of qualification and eligibility for public employment. Rather, by its terms it prohibited any
further payment of compensationto named individuals or employees. Under these
circumstances, viewed against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that the statute claimed to be a bill of
attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S.
Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of
1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb behaviour
which they regard as harmful to the public welfare,whether that conduct is found to be
engaged in by manypersons or by one. So long as the incidence of legislation issuch that the
persons who engage in the regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there can be no complaintof an
attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the
approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of the Communist Party of thePhilippines
and/or its successors or of any subversive association"after June 20, 1957, are punished.
Those whowere members of the Party or of any other subversive associationat the time of
the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons from penalliability. 34
The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist
Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is
inteded not to provide the basis for a legislativefinding of guilt of the members of the Party
butrather to justify the proscription spelled out in section 4. Freedom of expression and
freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation
on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why
before enacting the statute in question Congressconducted careful investigations and then
stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an
organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only
by force and violence but also by deceit, subversionand other illegal means, for the purpose
of establishing in thePhilippines a totalitarian regime subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in scope but
international in direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope withthis continuing menace to
the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these
findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd
failed to takeproper account of the distinction between legislative fact and adjudicative fact.
Professor Paul Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would
raise a question of legislativefact, i.e., whether this standard has a reasonable relationto
public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating
beverages (assuming itis not so vague as to require supplementation by rule-making)would
raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within
the meaning of the statuteand the limits on governmental action imposed by the
Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion
founded on underlying facts and oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts — those facts which are relevant to the
legislative judgment — will not be canvassed save to determine whether there is a
rationalbasis for believing that they exist, while adjudicativefacts — those which tie the
legislative enactment to the litigant — are to be demonstrated and found according to the
ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs.
Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio." The recital
of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive
Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the
foreign government controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme
Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress over
morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly
cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we
mustas a not unentertainable appraisal by Congress of the threatwhich Communist
organizations pose not only to existing governmentin the United States, but to the United
States as asovereign, independent Nation. ...we must recognize that thepower of Congress to
regulate Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the
Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain
to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and
transcendes every other value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so
aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion
against dictatorial governmentsis without force where the existing structure of government
provides for peaceful and orderly change. We rejectany principle of governmental
helplessness in the face of preparationfor revolution, which principle, carried to its logical
conclusion,must lead to anarchy. No one could conceive that it isnot within the power of
Congress to prohibit acts intended tooverthrow the government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4
thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental
purpose be legitimate and substantial,that purpose cannot be pursued by means that
broadly stiflefundamental personal liberties when the end can be more narrowly achieved."
42 The requirement of knowing membership,as distinguished from nominal membership,
hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43
For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and
when membership is acceptedor retained with knowledge that the organization is engaged
inan unlawful purpose, the one accepting or retaining membershipwith such knowledge
makes himself a party to the unlawfulenterprise in which it is engaged. 44
As already pointed out, the Act is aimed against conspiracies to overthrow the Government
by force, violence orother illegal means. Whatever interest in freedom of speechand
freedom of association is infringed by the prohibitionagainst knowing membership in the
Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and
heavily outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the
membership provision ofthe Anti-Subversion Act. The former provides:

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks
of "overthrow"of the Government and overthrow may be achieved by peaceful means,
misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Whoever organizes or helps or attempts to organize anysociety, group, or assembly of
Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for persons who teach, advocate, orencourage the overthrow or destruction of any such
the different acts prescribedare stated in section 4 which requires that membershipin the governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such
Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully society, group or assembly of persons, knowingthe purpose thereof —
and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow
contemplated is "overthrow not only by forceand violence but also be deceit, subversion and
other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an
oversight rather than to deliberateomission.
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and
shall be ineligible for emplymentby the United States or any department or agencythereof,
for the five years next following his conviction.... 46

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal
means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments,
and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the
use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
delineated objective of the "overthrow,"namely, "establishing in the Philippines a
totalitarianregime and place [sic] the Government under thecontrol and domination of an
alien power." What thisCourt once said in a prosecution for sedition is appropos: "The
language used by the appellant clearly imported anoverthrow of the Government by It was settled in Dennis that advocacy with which we arehere concerned is not
violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently constitutionally protected speech, and itwas further established that a combination to
intended to be understood. The word 'overthrow'could not have been intended as referring promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not
to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the such association as is protected by the firstAmendment. We can discern no reason why
accused exhorted his audience to useagainst the Constabulary], an instrument designed membership, whenit constitutes a purposeful form of complicity in a group engagingin this
toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which same forbidden advocacy, should receive anygreater degree of protection from the
the appellant wouldhave us impute to the language." 45 guarantees of that Amendment.

IV. The Act and the Guaranty of Free Expression Moreover, as was held in another case, where the problemsof accommodating the exigencies
of self-preservationand the values of liberty are as complex and intricate as inthe situation
described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act
of 1950,the legislative judgment as to how that threat may best bemet consistently with the
safeguards of personal freedomsis not to be set aside merely because the judgment of
judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation,
"whether it restrains freedom tohire or freedom to speak, is itself an effort at
compromisebetween the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test the court stands one step
removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be
enacted into law shall embrace more than one subject which shall be expressed in the title of
the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of
section 4 which reads:
And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its political
subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing
such Government or political subdivisionunder the control and domination of any lien power,
shallbe punished by prision correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist
Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means, even if their intent is not to
establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place
the nation under an aliencommunist power, but under an alien democratic power likethe
United States or England or Malaysia or even an anti-communistpower like Spain, Japan,
Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the
Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther
Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally
indicates that the subject matter is subversionin general which has for its fundamental
purpose the substitutionof a foreign totalitarian regime in place of theexisting Government
and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the
details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope,
and consequences of the proposed lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute will be read fairly and reasonablyin order not to
thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot
overemphasize the needfor prudence and circumspection in its enforcement, operatingas it
does in the sensitive area of freedom of expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any prosecution under the Act.The Government,
in addition to proving such circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the Philippinesor any other
subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines,
(a) that thepurpose of the organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime under the domination of
aforeign power; (b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue
the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the
overthrow of the Government by illegalmeans for the purpose of placing the country under
thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the
Communist Party ofthe Philippines or of any other subversive association: weleave this
matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two
cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision
reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the
learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and
painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the
concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted
under suchAct respect for their constitutional rights is to be commended.Nonetheless, my
own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe
fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of
belief and expression3 as well as freedom of association 4 as to impermissible inroadsto
which they may be exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety
and security shouldbe ignored. The political branches of the governmentwould lay
themselves oepn to a justifiable indictment fornegligence had they been remiss in their
obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of the magnitude
that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and weakening the senseof
allegiance have introduced complexities in coping withsuch problems. There must be then,
and I am the firstto recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto
be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the
only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation
of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof
free speech. I am comforted by the thought that evenhad my view prevailed, all that it would
mean is that anew legislation, more in comformity to my way of thinkingto what is ordained
by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of
subversive activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional Convention of 1934 and by the people who
adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address
on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the designated, do certain specified acts, theywould be no less within the inhibition of the
opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without Federal Constitution.In all these cases there would be the legislativeenactment creating the
judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of deprivation, without any of theordinary forms and guards provided for the security ofthe
Attainder was an act of Parliament by which a man was tried, convictedand sentenced to citizen in the administration of justice by the establishedtribunales." 10
death without a jury, without ahearing in court, without hearing the witnesses againsthim
and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering
him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte
Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11
wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were
was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American
favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a
Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860.
bill of attainder presented to Parliament becauseof his reform activities."5 Two American
Underthe previous rules of such Court, all that was necessarywas that the applicant have
SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
three years practice in the statecourts to which he belonged. In March 1865, the rule
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter
waschanged by the addition of a clause requiring that an oathbe taken under the
whattheir form, that apply either to named individuals or easilyascertainable members of a
Congressional acts of 1862 and 1865to the effect that such candidate for admission to the
group in such a way as to inflicton them punishment amounting to a deprivation ofany right,
barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not
civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8
in conscience subscribeto such an oath, but he was able to show a presidentialpardon
extended on July 15, 1865. With such actof clemency, he moved that he be allowed to
continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it
loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, imposes a punishmentfor some of the acts specified which were not punishableat the time
lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act they were committedl; and for other of the actsit adds a new punishment to that before
orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the
the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave
engaged in their professions without theoath, they were criminally liable. The United States had occasion to consider at length the meaning of abill of attainder and of an ex post facto
Supreme Court condemned the provision as a bill of attainder,identified as any legislative act law in the clauseof the Constitution forbidding their passage by the states,and it is
inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, unnecessary to repeat here what we there said.A like prohibition is contained in the
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was Constitution againstenactments of this kind by Congress; and the argumentpresented in that
explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which case against certain clauses of the Constitutionof Missouri is equally applicable to the act
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis ofCongress under consideration in this case." 12
termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13
the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether
decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd,
conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in
were and had been for several yearsworking for the government. The government
accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d
agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work
article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that
and wished to keep thememployed on their jobs. Over their protest, Congress providedin
Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the
Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment
UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the
attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should
military service of the UnitedStates, and, therefore, should be deprived of the right topreach
be paid respondent out of any moneythen or thereafter appropriated except for services as
as a priest of the Catholic church, or to teach inany institution of learning, there could be no
jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again
question thatthe clauses would constitute a bill of attainder within themeaning of the
appointed to jobs bythe President with the advide and consent of the
Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to
priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held
reappoint the respondents, theagencies, kept all the respondents at work on their jobs
guilty of them, and hencebe subjected to the like deprivation, the clause would beequally
forvarying periods after November 15, 1943, but their compensationwas discontinued after
open to objection. And further, it these clauseshad declared that all such priests and
that date. Respondentsbrought this action in the Court of Claims for the salariesto which
clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day
they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to
whether theaction in the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by
Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the
category of Congressional actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said,
'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the
punishment be lessthan death, the act is termed a bill of pains and penalties.Within the
meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the
sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on
the same grounds anAct of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled. They stand for the
propositionthat legislative acts, no matter what their form,that apply either to named
individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to
it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of
the Communist Party to serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of a centurywas elected
to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's
Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent
was charged in a one-countindictment returned in a district court of California withservicing
as a member of an executive board of a labororganization while a member of the Communist
Party, inwillful violation of the above provision. The question ofits validity under the bill of
attainder clause was thusproperly raised for adjudication. While convicted in thelower court,
the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American
SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of
the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be
sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils
it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation
of the separation of powers, ageneral safeguard against legislative exercise of the
judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings,
Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined,
Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under theCommerce Clause to enact
legislation designed to keepfrom positions affecting interstate commerce persons whomay
use such positions to bring about political strikes. In Sec. 504, however, Congress has
exceeded the authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to
initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of
deciding what persons have committed the specifiedacts or possessed the specified
characteristics. Instead,it designates in no uncertain terms the personswho possess the
fearec characteristics and therefore cannothold union office without incurring criminal
liability — members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States
to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but to described
activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by
name or described in terms of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It
requires the registrationonly of organizations which, after the date of the Act,are found to be
under the direction, domination, or controlof certain foreign powers and to operate primarily
toadvance certain objectives. This finding must be madeafter full administrative hearing,
subject to judicial reviewwhich opens the record for the reviewing court'sdetermination
whether the administrative findings as tofact are supported by the preponderance of the
evidence.Present activity constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to
be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine
were likewise cited in theopinion of the Court. The interpretation accorded to themby my
brethren is, of course, different but I am unable togo along with them especially in the light
of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification
that for them could deprive such aholding of its explicit character as shown by this
excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment. But the fact is
that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial
that the accused joined the Party knowingly,willfully and by overt acts, and that they joined
the Partyknowing its subversive character and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find
difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic
priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the
laborleader who, judging by his membership in the CommunistParty, did transgress the
statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme
Court is correct, then the merefact that a criminal case would have to be instituted wouldnot
save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act,
"to outlaw the Communist Party of the Philippines and similar associations,"not to mention
other specific provisions, the taintof invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of
the Constitutional prohibitionagainst bills of attainder.
"Without holding the right to theexpression of heresy at any time and place to be absolute —
for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate
the expression evenof Communist, fascist and other heresies, lest in outlawingthem we
include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly
sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been reached, to follow theformulation of
Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech
or pressordained by the Constitution. It does not bar the expressionof views affecting the
very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does
not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free
assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though
Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful
the governmental purposesbe legitimate and substantial, they cannot be pursuedby means
reality for Congressional leaders andthe then President. Its shadow fell squarely across
that broadly stifle fundamental personalliberties when the end can be more narrowly
thelives of all. Subversion then could neither be denied notdisparaged. There was, in the
achieved.For precision of regulation is the touchstone in an areaso closely related to our
expert opinion of those conversantwith such mattes, a danger to out national existenceof no
most precious freedoms." 24 This is so for "a governmental purpose to control or prevent
mean character. Nonetheless, the remedies toward off such menace must not be repugnant
activities constitutionally subject to state regulation may notbe achieved by means which
to our Constitution.We are legally precluded from acting in anyother way. The apprehension
sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It
justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had
isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
to be, but not at the expense of constitutional ideals.
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen
crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can
differ, evenobject; one can express dissatisfaction with things as theyare. There are timew
when one not only can but must.Such dissent can take the form of the most critical andthe
There is to my mind support for the stand I take inthe dissent of Justice Black in the
most disparaging remarks. They may give offense tothose in authority, to those who wield
Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure
powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the
certainly less drastic in its treatment ofthe admittedly serious Communist problem was found
content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined
inthe opinion of this noted jurist offensive to the FirstAmendment of the American
totrivial matters or to such as are devoid of too much significance.It can reach the heart of
Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First
things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a
Amendment it is that this Amendment was designedto guarantee the freest interchange of
subversive tinge. Even those who oppose a democraticform of government cannot be
ideas aboutall public matters and that, of course, means the interchangeof all ideas, however
silenced. This is trueespecially in centers of learning where scholars competentin their line
such ideas may be viewed inother countries and whatever change in the existing structureof
may, as a result of their studies, assert thata future is bleak for the system of government
government it may be hoped that these ideas willbring about. Now, when this country is
now favoredby Western democracies. There may be doubts entertainedby some as to the
trying to spreadthe high ideals of democracy all over the world — ideals that are
lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic
revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First
change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction.
Amendmentfreedoms in this country. The same arguments that areused to justify the
That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of
among us who would wish todissolve this union or to change its republican form, letthem
democracyin other countries." 26 Further he stated: "I believe with theFramers of the First
stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
Amendment that the internal securityof a nation like ours does not and cannot be made
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook:
todepend upon the use of force by Government to make allthe beliefs and opinions of the change matters radically.At least, it should take earnest steps in that direction.What is
people fit into a commonmold on any single subject. Such enforced conformity ofthought important for those at the bottom of the economicpyramid is that they are not denied the
would tend only to deprive our people of the boldspirit of adventure and progress which has opportunity for abetter life. If they, or at least their children, cannot evenlook forward to
brought thisNation to its present greatness. The creation of publicopinion by groups, that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a
organizations, societies, clubs, and partieshas been and is a necessary part of our response,I am optimistic enough to believe, has the merit of thinning,if not completely
democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme
Societies, played a large part increating sentiment in this country that led the people ofthe would be more in accordance with the basic propositionof our polity. This is not therefore to
Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — preach a doctrine of object surrender to the forces apparently bent on the adoption of a way
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an
been in effect during the period beforethe Revolution, the United States might well have affirmation of the vitality of the democratic creed, with an expression of regret that it could
continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this not have been more impressively set forth in language worthy of the subject.
country's internal security can betterbe served by depending upon the affection of the
peoplethan by attempting to instill them with fear and dreadof the power of Government.
The Communist Party hasnever been more than a small group in this country. Andits
numbers had been dwindling even before the Governmentbegan its campaign to destroy the
It is in the light of the views above expressed that I find myself unable to yield concurrence to
Party by force oflaw. This was because a vast majority of the Americanpeople were against
the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-
the Party's policies and overwhelminglyrejected its candidates year after year. That is the
Subversion Act.
trueAmerican way of securing this Nation against dangerousideas. Of course that is not the
way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government
the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power
to punish people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of
thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act
successfully meeting the test of validity onfree speech and freedom of association grounds.

Separate Opinions

4. It could be that this approach to the constitutionalquestions involved arises from an

appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does
represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of
aliberal-democratic state. That certainly could not havebeen the thought of its framers; FERNANDO, J., dissenting:
nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme
measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional
grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that
the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the It is with regard that I find myself unable to join therest of my brethren in the decision
hearts and minds of men. It if difficult forme to accept the view then that a resort to reached upholding thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the
outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and
There could have been a greater exposureof the undesirability of the communist creed, painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the
itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted
its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic under suchAct respect for their constitutional rights is to be commended.Nonetheless, my
sense, a manifestation of the fear of freethought and the will to suppress it. For better, of own reading of the decisionscited, interpreting the bill of attainder clause2 coupled withthe
course,is the propaganda of the deed. What the communists promise,this government can fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of
fulfill. It is up to it then to takeremedial measures to alleviate the condition of our
countrymenwhose lives are in a condition of destitution andmisery. It may not be able to
belief and expression3 as well as freedom of association 4 as to impermissible inroadsto
which they may be exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety
and security shouldbe ignored. The political branches of the governmentwould lay
themselves oepn to a justifiable indictment fornegligence had they been remiss in their
obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the
overthrow of the government wasusually through the rising up in arms, with weapons farless
sophisticated than those now in existence, there wasno constitutional issue of the magnitude
that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in
science as well as more subtlemethods of inducing disloyalty and weakening the senseof
allegiance have introduced complexities in coping withsuch problems. There must be then,
and I am the firstto recognize it, a greater understanding for the governmentalresponde to
situations of that character. It is inthat light that the validity of the Anti-Subversion Act isto
be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the
only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation
of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof
free speech. I am comforted by the thought that evenhad my view prevailed, all that it would
mean is that anew legislation, more in comformity to my way of thinkingto what is ordained
by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of
subversive activities, in whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional Convention of 1934 and by the people who
adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address
on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the
opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without
judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of
Attainder was an act of Parliament by which a man was tried, convictedand sentenced to
death without a jury, without ahearing in court, without hearing the witnesses againsthim
and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering
him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte
Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act
wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were
favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a
bill of attainder presented to Parliament becauseof his reform activities."5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v.
Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter
whattheir form, that apply either to named individuals or easilyascertainable members of a
group in such a way as to inflicton them punishment amounting to a deprivation ofany right,
civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the
loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision,
lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act
orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with
the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they
engaged in their professions without theoath, they were criminally liable. The United States
Supreme Court condemned the provision as a bill of attainder,identified as any legislative act
inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was
explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis
termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder
include bills ofpains and penalties. In these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of
the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether
conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in
accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d
article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that
Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the
UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the
military service of the UnitedStates, and, therefore, should be deprived of the right topreach
as a priest of the Catholic church, or to teach inany institution of learning, there could be no
question thatthe clauses would constitute a bill of attainder within themeaning of the
Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all
priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held
guilty of them, and hencebe subjected to the like deprivation, the clause would beequally
open to objection. And further, it these clauseshad declared that all such priests and
clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day
designated, do certain specified acts, theywould be no less within the inhibition of the
Federal Constitution.In all these cases there would be the legislativeenactment creating the
deprivation, without any of theordinary forms and guards provided for the security ofthe
citizen in the administration of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11
was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American
Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860.
Underthe previous rules of such Court, all that was necessarywas that the applicant have
three years practice in the statecourts to which he belonged. In March 1865, the rule
waschanged by the addition of a clause requiring that an oathbe taken under the
Congressional acts of 1862 and 1865to the effect that such candidate for admission to the
barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not
in conscience subscribeto such an oath, but he was able to show a presidentialpardon
extended on July 15, 1865. With such actof clemency, he moved that he be allowed to
continue inpractice contending that the test oath requirement wasunconstitutional as a bill
of attainder and that at any rate,he was pardoned. The same ruling was announced by
theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it
imposes a punishmentfor some of the acts specified which were not punishableat the time
they were committedl; and for other of the actsit adds a new punishment to that before
prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the
passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave
had occasion to consider at length the meaning of abill of attainder and of an ex post facto
law in the clauseof the Constitution forbidding their passage by the states,and it is
unnecessary to repeat here what we there said.A like prohibition is contained in the
Constitution againstenactments of this kind by Congress; and the argumentpresented in that
case against certain clauses of the Constitutionof Missouri is equally applicable to the act
ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13
decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd,
were and had been for several yearsworking for the government. The government
agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work
and wished to keep thememployed on their jobs. Over their protest, Congress providedin
Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment
attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should
be paid respondent out of any moneythen or thereafter appropriated except for services as
jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide and consent of the
Senate.Notwithstanding such Congressional enactment, and thefailure of the President to
reappoint the respondents, theagencies, kept all the respondents at work on their jobs
forvarying periods after November 15, 1943, but their compensationwas discontinued after
that date. Respondentsbrought this action in the Court of Claims for the salariesto which
they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to
whether theaction in the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by
Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the
category of Congressional actionswhich the Constitution barred by providing that 'No Billof
Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said,
'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the
punishment be lessthan death, the act is termed a bill of pains and penalties.Within the
meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the
sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on
the same grounds anAct of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled. They stand for the
propositionthat legislative acts, no matter what their form,that apply either to named
individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the
Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to
it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of
the Communist Party to serve as anofficer ir, except in clerical or custodial positions,
anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco
docks, and an open andavowed Communist, for more than a quarter of a centurywas elected
to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's
Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent
was charged in a one-countindictment returned in a district court of California withservicing
as a member of an executive board of a labororganization while a member of the Communist
Party, inwillful violation of the above provision. The question ofits validity under the bill of
attainder clause was thusproperly raised for adjudication. While convicted in thelower court,
the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American
SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form,
purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of
the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be
sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils
it was desinged to eliminate.The best available evidence, the writings of the architectsof our
constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation
of the separation of powers, ageneral safeguard against legislative exercise of the
judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings,
Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined,
Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of
attainder. Congress undoubtedly possesses power under theCommerce Clause to enact
legislation designed to keepfrom positions affecting interstate commerce persons whomay
use such positions to bring about political strikes. In Sec. 504, however, Congress has
exceeded the authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to
initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of
deciding what persons have committed the specifiedacts or possessed the specified
characteristics. Instead,it designates in no uncertain terms the personswho possess the
fearec characteristics and therefore cannothold union office without incurring criminal
liability — members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States
to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome certainly would have been different.Thus:
"The Act is not a bill of attainder. It attaches notto specified organizations but to described
activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by
name or described in terms of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It
requires the registrationonly of organizations which, after the date of the Act,are found to be
under the direction, domination, or controlof certain foreign powers and to operate primarily
toadvance certain objectives. This finding must be madeafter full administrative hearing,
subject to judicial reviewwhich opens the record for the reviewing court'sdetermination
whether the administrative findings as tofact are supported by the preponderance of the
evidence.Present activity constitutes an operative element to whichthe statute attaches legal
consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to
be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine
were likewise cited in theopinion of the Court. The interpretation accorded to themby my
brethren is, of course, different but I am unable togo along with them especially in the light
of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification
that for them could deprive such aholding of its explicit character as shown by this
excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law
alone,without more, would suffice to secure their conviction andpunishment. But the fact is
that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial
that the accused joined the Party knowingly,willfully and by overt acts, and that they joined
the Partyknowing its subversive character and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force, deceit, and other illegal means and placeit
under the control and domination of a foreign power. 20While not implausible, I find
difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic
priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the
laborleader who, judging by his membership in the CommunistParty, did transgress the
statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme
Court is correct, then the merefact that a criminal case would have to be instituted wouldnot
save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act,
"to outlaw the Communist Party of the Philippines and similar associations,"not to mention
other specific provisions, the taintof invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of
the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free
assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic
Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful
reality for Congressional leaders andthe then President. Its shadow fell squarely across
thelives of all. Subversion then could neither be denied notdisparaged. There was, in the
expert opinion of those conversantwith such mattes, a danger to out national existenceof no
mean character. Nonetheless, the remedies toward off such menace must not be repugnant
to our Constitution.We are legally precluded from acting in anyother way. The apprehension
justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had
to be, but not at the expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can
differ, evenobject; one can express dissatisfaction with things as theyare. There are timew
when one not only can but must.Such dissent can take the form of the most critical andthe
most disparaging remarks. They may give offense tothose in authority, to those who wield
powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the
content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined
totrivial matters or to such as are devoid of too much significance.It can reach the heart of
things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a
subversive tinge. Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars competentin their line
may, as a result of their studies, assert thata future is bleak for the system of government
now favoredby Western democracies. There may be doubts entertainedby some as to the
lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic
change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction.
That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any
among us who would wish todissolve this union or to change its republican form, letthem
stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook:
"Without holding the right to theexpression of heresy at any time and place to be absolute —
for even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate
the expression evenof Communist, fascist and other heresies, lest in outlawingthem we
include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly
sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been reached, to follow theformulation of
Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech
or pressordained by the Constitution. It does not bar the expressionof views affecting the
very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does
not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard.
Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though
the governmental purposesbe legitimate and substantial, they cannot be pursuedby means
that broadly stifle fundamental personalliberties when the end can be more narrowly
achieved.For precision of regulation is the touchstone in an areaso closely related to our
most precious freedoms." 24 This is so for "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may notbe achieved by means which
sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It
isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen
crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion
Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the
Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure
certainly less drastic in its treatment ofthe admittedly serious Communist problem was found
inthe opinion of this noted jurist offensive to the FirstAmendment of the American
Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First
Amendment it is that this Amendment was designedto guarantee the freest interchange of
ideas aboutall public matters and that, of course, means the interchangeof all ideas, however
such ideas may be viewed inother countries and whatever change in the existing structureof
government it may be hoped that these ideas willbring about. Now, when this country is
trying to spreadthe high ideals of democracy all over the world — ideals that are
revolutionary in many countries — seems to be aparticularly inappropriate time to stifle First
Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of
democracyin other countries." 26 Further he stated: "I believe with theFramers of the First
Amendment that the internal securityof a nation like ours does not and cannot be made
todepend upon the use of force by Government to make allthe beliefs and opinions of the
people fit into a commonmold on any single subject. Such enforced conformity ofthought
would tend only to deprive our people of the boldspirit of adventure and progress which has
brought thisNation to its present greatness. The creation of publicopinion by groups,
organizations, societies, clubs, and partieshas been and is a necessary part of our
democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding
Societies, played a large part increating sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father ofthe Constitution — James Madison —
said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law
been in effect during the period beforethe Revolution, the United States might well have
continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this
country's internal security can betterbe served by depending upon the affection of the
peoplethan by attempting to instill them with fear and dreadof the power of Government.
The Communist Party hasnever been more than a small group in this country. Andits
numbers had been dwindling even before the Governmentbegan its campaign to destroy the
Party by force oflaw. This was because a vast majority of the Americanpeople were against
the Party's policies and overwhelminglyrejected its candidates year after year. That is the
trueAmerican way of securing this Nation against dangerousideas. Of course that is not the
way to protect the Nationagainst actions of violence and treason. The Foundersdrew a
distinction in our Constitution which we would bewise to follow. They gave the Government
the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power
to punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of
thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act
successfully meeting the test of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an
appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does
represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of
aliberal-democratic state. That certainly could not havebeen the thought of its framers;
nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme
measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional
grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that
the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the
hearts and minds of men. It if difficult forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the only answer to whatis an admitted evil.
There could have been a greater exposureof the undesirability of the communist creed,
itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and
its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic
sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can
fulfill. It is up to it then to takeremedial measures to alleviate the condition of our
countrymenwhose lives are in a condition of destitution andmisery. It may not be able to
change matters radically.At least, it should take earnest steps in that direction.What is
important for those at the bottom of the economicpyramid is that they are not denied the
opportunity for abetter life. If they, or at least their children, cannot evenlook forward to
that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a
response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme
would be more in accordance with the basic propositionof our polity. This is not therefore to
preach a doctrine of object surrender to the forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an
affirmation of the vitality of the democratic creed, with an expression of regret that it could
not have been more impressively set forth in language worthy of the subject.
It is in the light of the views above expressed that I find myself unable to yield concurrence to
the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-
Subversion Act.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 448 September 20, 1901
THE UNITED STATES, complainant-appellee,
vs.
PHILIP K. SWEET, defendant-appellant.
Theofilus B. Steele, for appellant.
Office of the Solicitor-General Araneta, for appellee.
LADD, J.:
The offense charged in the complaint is punishable under the Penal Code now in force by
arresto mayor and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the
United States Philippine Commission, section 56 (6), Courts of First Instance are given original
jurisdiction "in all criminal cases in which a penalty of more than six months' imprisonment
or a fine exceeding one hundred dollars may be imposed." The offense was therefore
cognizable by the court below unless the fact that the appellant was at the time of its alleged
commission an employee of the United States military authorities in the Philippine Islands,
and the further fact that the person upon whom it is alleged to have been committed was a
prisoner of war in the custody of such authorities, are sufficient to deprive it of jurisdiction.
We must assume that both these facts are true, as found, either upon sufficient evidence or
upon the admissions of the prosecuting attorney, by the court below.
Setting aside the claim that the appellant was "acting in the line of duty" at the time the
alleged offense was committed, which is not supported by the findings or by any evidence
which appears in the record, the contention that the court was without jurisdiction, as we
understand it, is reducible to two propositions: First, that an assault committed by a soldier
or military employee upon a prisoner of war is not an offense under the Penal Code; and
second, that if it is an offense under the Code, nevertheless the military character sustained
by the person charged with the offense at the time of its commission exempts him from the
ordinary jurisdiction of the civil tribunals.
As to the first proposition, it is true, as pointed out by counsel, that an assault of the
character charged in the complaint committed in time of war by a military person upon a
prisoner of war is punishable as an offense under the Spanish Code of Military Justice (art.
232), and it is also true that under the provisions of the same Code (arts. 4, 5) the military
tribunals have, with certain exceptions which it is not material to state, exclusive cognizance
of all offenses, whether of a purely military nature or otherwise, committed by military
persons. But the fact that the acts charged in the complaint would be punishable as an
offense under the Spanish military legislation does not render them any less an offense
under the article of the Penal Code above cited. There is nothing in the language of that
article to indicate that it does not apply to all persons within the territorial jurisdiction of the
law. Under articles 4 and 5 of the Code of Military Justice above cited a military person could
not be brought to trial before a civil tribunal for an assault upon a prisoner of war, but by the
commission of that offense he incurred a criminal responsibility for which he was amenable
only to the military jurisdiction. That criminal responsibility, however, arose from an
infraction of the general penal laws, although the same acts, viewed in another aspect, might
also, if committed in time of war, constitute an infraction of the military code. We are unable
to see how these provisions of the Spanish Military Code, no longer in force here and which
indeed never had any application to the Army of the United States, can in any possible view
have the effect claimed for them by counsel for the appellant.
The second question is, Does the fact that the alleged offense was committed by an
employee of the United States military authorities deprive the court of jurisdiction? We have
been cited to no provision in the legislation of Congress, and to none in the local legislation,
which has the effect of limiting, as respects employees of the United States military
establishment, the general jurisdiction conferred upon the Courts of First Instance by Act No.
136 of the United States Philippine Commission above cited, and we are not aware of the
existence of any such provision. The case is therefore open to the application of the general
principle that the jurisdiction of the civil tribunals is unaffected by the military or other
special character of the person brought before them for trial, a principle firmly established in
the law of England and America and which must, we think, prevail under any system of
jurisprudence unless controlled by express legislation to the contrary. (United States vs.
Clark, 31 Fed. Rep., 710.) The appellant's claim that the acts alleged to constitute the offense
were performed by him in the execution of the orders of his military superiors may, if true,
be available by way of defense upon the merits in the trial in the court below, but can not
under this principle affect the right of that court to take jurisdiction of the case.
Whether under a similar state of facts to that which appears in this case a court of one of the
United States would have jurisdiction to try the offender against the State laws (see In re Fair,
100 Fed. Rep., 149), it is not necessary to consider. The present is not a case where the
courts of one government are attempting to exercise jurisdiction over the military agents or
employees of another and distinct government, because the court asserting jurisdiction here
derives its existence and powers from the same Government under the authority of which
the acts alleged to constitute the offense are claimed to have been performed.
It may be proper to add that there is no actual conflict between the two jurisdictions in the
present case nor any claim of jurisdiction on the part of the military tribunals. On the
contrary it appears from the findings of the court below that the complaint was entered by
order of the commanding general of the Division of the Philippines, a fact not important,
perhaps, as regards the technical question of jurisdiction, but which relieves the case from
any practical embarrassment which might result from a claim on the part of the military
tribunals to exclusive cognizance of the offense.
The order of the court below is affirmed with costs to the appellant.
Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.
Separate Opinions

COOPER, J., concurring:

I concur in the result of the decision of the court, but am not prepared to assent to all that is
said in the opinion. An offense charged against a military officer, acting under the order of his
superior, unless the illegality of the order is so clearly shown on its face that a man of
ordinary sense and understanding would know when he heard it read or given that the order
was illegal, and when the alleged criminal act was done within the scope of his authority as
such officer, in good faith and without malice, and where the offense is against the military
law — that is, such law as relates to the discipline and efficiency of the Army, or rules and
orders promulgated by the Secretary of War to aid military officers in the proper
enforcement of the custody of prisoners — is not within the jurisdiction of the courts of the
Civil Government. (In re Fair, 100 Fed. Rep., 149.) The civil courts, however, may examine the
evidence for the purpose of determining whether the act alleged to be criminal was done in
the performance of duty under the circumstances above indicated, but should cease to
exercise jurisdiction upon such facts appearing.
 FIRST DIVISION
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in
1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was
charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was
arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00
per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The
next day, the MeTC judge received an "office of protocol" from the Department of Foreign
Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section
45 of the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge without notice to the
prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration
which was opposed by the DFA. When its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside
the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier
issued. After the motion for reconsideration was denied, petitioner elevated the case to this
Court via a petition for review arguing that he is covered by immunity under the Agreement
and that no preliminary investigation was held before the criminal cases were filed in
court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is
covered by immunity is only preliminary which has no binding effect in courts. In receiving
ex-parte the DFA's advice and in motu propio dismissing the two criminal cases without
notice to the prosecution, the latter's right to due process was violated. It should be noted
that due process is a right of the accused as much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at the time of the alleged utterances requires
for its resolution evidentiary basis that has yet to be presented at the proper time.1 At any
rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto
result in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges
and immunities:
a.) immunity from legal process with respect to acts performed by them
in their official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts
was done in "official capacity." It is therefore necessary to determine if petitioner's case falls
within the ambit of Section 45(a). Thus, the prosecution should have been given the chance
to rebut the DFA protocol and it must be accorded the opportunity to present its
controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because
our laws do not allow the commission of a crime, such as defamation, in the name of official
duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond
the scope of his authority or jurisdiction.4 It appears that even the government's chief legal
counsel, the Solicitor General, does not support the stand taken by petitioner and that of the
DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in
the case of an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions.5 As already mentioned
above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to
say that preliminary investigation is not a matter of right in cases cognizable by the MeTC
such as the one at bar.6 Being purely a statutory right, preliminary investigation may be
invoked only when specifically granted by law.7 The rule on the criminal procedure is clear
that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.8 Besides the absence of preliminary investigation does not affect the court's
jurisdiction nor does it impair the validity of the information or otherwise render it
defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
 FIRST DIVISION
G.R. No. 125865 March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000,
denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE
MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE
UPON THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK
(ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT
ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED
PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO
THIS CASE.
This case has its origin in two criminal Informations1 for grave oral defamation filed against
petitioner, a Chinese national who was employed as an Economist by the Asian Development
Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994,
petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical
staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting
pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed
immunity from legal processes, dismissed the criminal Informations against him. On a
petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig
City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing
the criminal cases.2
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we
rendered the assailed Decision denying the petition for review. We ruled, in essence, that the
immunity granted to officers and staff of the ADB is not absolute; it is limited to acts
performed in an official capacity. Furthermore, we held that the immunity cannot cover the
commission of a crime such as slander or oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted
the Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties
were directed to submit their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic
immunity of the ADB, its officials and staff, from legal and judicial processes in the
Philippines, as well as the constitutional and political bases thereof. It should be made clear
that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. The
issue in this case, rather, boils down to whether or not the statements allegedly made by
petitioner were uttered while in the performance of his official functions, in order for this
case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between the
Asian Development Bank and the Government of the Republic of the Philippines Regarding
the Headquarters of the Asian Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article experts and
consultants performing missions for the Bank, shall enjoy the following privileges
and immunities:
(a) Immunity from legal process with respect to acts performed by them
in their official capacity except when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions
for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As
we have stated therein, the slander of a person, by any stretch, cannot be considered as
falling within the purview of the immunity granted to ADB officers and personnel. Petitioner
argues that the Decision had the effect of prejudging the criminal case for oral defamation
against him. We wish to stress that it did not. What we merely stated therein is that slander,
in general, cannot be considered as an act performed in an official capacity. The issue of
whether or not petitioner's utterances constituted oral defamation is still for the trial court
to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner
and intervenor Department of Foreign Affairs are DENIED with FINALITY.
SO ORDERED.
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this
Court's decision dated January 28, 2000 which denied the petition for review. We there held
that: the protocol communication of the Department of Foreign Affairs to the effect that
petitioner Liang is covered by immunity is only preliminary and has no binding effect in
courts; the immunity provided for under Section 45(a) of the Headquarters Agreement is
subject to the condition that the act be done in an "official capacity"; that slandering a
person cannot be said to have been done in an "official capacity" and, hence, it is not
covered by the immunity agreement; under the Vienna Convention on Diplomatic Relations,
a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of
the receiving state except in the case of an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving state outside his official functions;
the commission of a crime is not part of official duty; and that a preliminary investigation is
not a matter of right in cases cognizable by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following arguments:
1. The DFA's determination of immunity is a political question to be made by the
executive branch of the government and is conclusive upon the courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development Bank (ADB);
4. Due process was fully accorded the complainant to rebut the DFA protocol;
5. The decision of January 28, 2000 erroneously made a finding of fact on the
merits, namely, the slandering of a person which prejudged petitioner's case
before the Metropolitan Trial Court (MTC) Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not applicable to this case.
Petitioner contends that a determination of a person's diplomatic immunity by the
Department of Foreign Affairs is a political question. It is solely within the prerogative of the
executive department and is conclusive upon the courts. In support of his submission,
petitioner cites the following cases: WHO vs. Aquino;1 International Catholic Migration
Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs. United Nations;4 and DFA vs.
NLRC.5
It is further contended that the immunity conferred under the ADB Charter and the
Headquarters Agreement is absolute. It is designed to safeguard the autonomy and
independence of international organizations against interference from any authority external
to the organizations. It is necessary to allow such organizations to discharge their entrusted
functions effectively. The only exception to this immunity is when there is an implied or
express waiver or when the immunity is expressly limited by statute. The exception allegedly
has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity from local
jurisdiction empowers the ADB alone to determine what constitutes "official acts" and the
same cannot be subject to different interpretations by the member states. It asserts that the
Headquarters Agreement provides for remedies to check abuses against the exercise of the
immunity. Thus, Section 49 states that the "Bank shall waive the immunity accorded to any
person if, in its opinion, such immunity would impede the course of justice and the waiver
would not prejudice the purposes for which the immunities are accorded." Section 51 allows
for consultation between the government and the Bank should the government consider that
an abuse has occurred. The same section provides the mechanism for a dispute settlement
regarding, among others, issues of interpretation or application of the agreement.
Petitioner's argument that a determination by the Department of Foreign Affairs that he is
entitled to diplomatic immunity is a political question binding on the courts, is anchored on
the ruling enunciated in the case of WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international law and under our system of separation
of powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at bar, it is then
the duty of the courts to accept the claim of immunity upon appropriate suggestion
by the principal law officer of the government, the Solicitor General in this case, or
other officer acting under his direction. Hence, in adherence to the settled principle
that courts may not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that in such cases the judicial department
of the government follows the action of the political branch and will not embarrass
the latter by assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic Migration
Commission vs. Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10
The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner
Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic
immunity pursuant to the Host Agreement executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It
was held that they are not subject to local jurisdictions. It was ruled that the exercise of
jurisdiction by the Department of Labor over the case would defeat the very purpose of
immunity, which is to shield the affairs of international organizations from political pressure
or control by the host country and to ensure the unhampered performance of their
functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See,
as represented by the Papal Nuncio. The Court upheld the petitioner's defense of sovereign
immunity. It ruled that where a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state, which the envoy holds on
behalf of the sending state for the purposes of the mission, with all the more reason should
immunity be recognized as regards the sovereign itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the
doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development
Bank. Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of
the Asian Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by
international organizations. Petitioner asserts that he is entitled to the same diplomatic
immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official
functions.
The term "international organizations" —
"is generally used to describe an organization set up by agreement between two or
more states. Under contemporary international law, such organizations are
endowed with some degree of international legal personality such that they are
capable of exercising specific rights, duties and powers. They are organized mainly
as a means for conducting general international business in which the member
states have an interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international treaty constituting a particular
international community, are appointed by this international community, or by an
organ of it, and are under its control to exercise, in a continuous way, functions in
the interest of this particular international community, and who are subject to a
particular personal status."12
"Specialized agencies" are international organizations having functions in particular fields,
such as posts, telecommunications, railways, canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade, education and culture, health and refugees.13
Issues
1. Whether petitioner Liang, as an official of an international organization, is
entitled to diplomatic immunity;
2. Whether an international official is immune from criminal jurisdiction for all acts,
whether private or official;
3. Whether the authority to determine if an act is official or private is lodged in the
courts;
4. Whether the certification by the Department of Foreign Affairs that petitioner is
covered by immunity is a political question that is binding and conclusive on the
courts.
Discussion
I
A perusal of the immunities provisions in various international conventions and agreements
will show that the nature and degree of immunities vary depending on who the recipient is.
Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the fulfillment of its purposes.
Article 105 (2): Representatives of the Members of the United Nations and officials
of the Organization shall similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their functions in connection with the
Organization."
2. Convention on the Privileges and Immunities of the United Nations
"Section 2: The United Nations, its property and assets wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend to any measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and subsidiary organs "Article 29: The person of a diplomatic agent shall be inviolable. He shall not be
of the United Nations . . shall . . . enjoy . . . immunity from personal arrest or liable to any form of arrest or detention. The receiving State shall treat him with
detention and from seizure of their personal baggage, and, in respect of words due respect and shall take all appropriate steps to prevent any attack on his
spoken or written and all acts done by them in their capacity as representatives, person, freedom, or dignity.
immunity from legal process of every kind.
xxx xxx xxx
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal
Section 14: Privileges and immunities are accorded to the representatives of jurisdiction of the receiving State. He shall also enjoy immunity from its civil and
Members not for the personal benefit of the individuals themselves, but in order to administrative jurisdiction, except in certain cases.
safeguard the independent exercise of their functions in connection with the
United Nations. Consequently, a Member not only has the right but is under a duty xxx xxx xxx
to waive the immunity of its representative in any case where in the opinion of the
Member the immunity would impede the course of justice, and it can be waived
Article 38 (1): Except in so far as additional privileges and immunities may be
without prejudice to the purpose for which the immunity is accorded.
granted by the receiving State, a diplomatic agent who is a national of or
permanently a resident in that State shall enjoy only immunity from jurisdiction,
xxx xxx xxx and inviolability, in respect of official acts performed in the exercise of his
functions."
Section 18 (a): Officials of the United Nations shall be immune from legal process in
respect of words spoken or written and all acts performed by them in their official 4. Vienna Convention on Consular Relations
capacity.
"Article 41 (1): Consular officials shall not be liable to arrest or detention pending
xxx xxx xxx trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority.
Section 19: In addition to the immunities and privileges specified in Section 18, the
Secretary-General and all Assistant Secretaries-General shall be accorded in respect xxx xxx xxx
of themselves, their spouses and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in accordance with
Article 43 (1): Consular officers and consular employees shall not be amenable to
international law.
the jurisdiction of the judicial or administrative authorities of the receiving State in
respect of acts performed in the exercise of consular functions.
Section 20: Privileges and immunities are granted to officials in the interest of the
United Nations and not for the personal benefit of the individuals themselves. The
Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply
Secretary-General shall have the right and the duty to waive the immunity of any
in respect of a civil action either: (a) arising out of a contract concluded by a
official in any case where, in his opinion, the immunity would impede the course of
consular officer or a consular employee in which he did not contract expressly or
justice and can be waived without prejudice to the interests of the United Nations.
impliedly as an agent of the sending State; or (b) by a third party for damage arising
from an accident in the receiving State caused by a vehicle, vessel or aircraft."
xxx xxx xxx
5. Convention on the Privileges and Immunities of the Specialized Agencies
Section 22: Experts . . . performing missions for the United Nations . . . shall be
accorded: (a) immunity from personal arrest or detention and from seizure of their
"Section 4: The specialized agencies, their property and assets, wherever located
personal baggage; (b) in respect of words spoken or written and acts done by them
and by whomsoever held, shall enjoy immunity from every form of legal process
in the course of the performance of their mission, immunity from legal process of
except in so far as in any particular case they have expressly waived their immunity.
every kind."
It is, however, understood that no waiver of immunity shall extend to any measure
of execution.
3. Vienna Convention on Diplomatic Relations
Section 13 (a): Representatives of members at meetings convened by a specialized
agency shall, while exercising their functions and during their journeys to and from
the place of meeting, enjoy immunity from personal arrest or detention and from
seizure of their personal baggage, and in respect of words spoken or written and all
acts done by them in their official capacity, immunity from legal process of every
kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be immune from legal
process in respect of words spoken or written and all acts performed by them in
their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified in sections 19 and
20, the executive head of each specialized agency, including a any official acting on
his behalf during his absence from duty, shall be accorded in respect of himself, his
spouse and minor children, the privileges and immunities, exemptions and facilities
accorded to diplomatic envoys, in accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of its powers to
borrow money, to guarantee obligations, or to buy and sell or underwrite the sale
of securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the territory of a country in which the Bank has its
principal or a branch office, or has appointed an agent for the purpose of accepting
service or notice of process, or has issued or guaranteed securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors, alternates, officers and employees of the
Bank, including experts performing missions for the Bank shall be immune from
legal process with respect to acts performed by them in their official capacity,
except when the Bank waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal process, except
in cases arising out of or in connection with the exercise of its powers to borrow
money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities, in which cases actions may be brought against the Bank in a court of
competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members, Directors, the President,
Vice-President and executive officers as may be agreed upon between the
Government and the Bank shall enjoy, during their stay in the Republic of the
Philippines in connection with their official duties with the Bank: (a) immunity from
personal arrest or detention and from seizure of their personal baggage; (b)
immunity from legal process of every kind in respect of words spoken or written
and all acts done by them in their official capacity; and (c) in respect of other
matters not covered in (a) and (b) above, such other immunities, exemptions,
privileges and facilities as are enjoyed by members of diplomatic missions of
comparable rank, subject to corresponding conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including for the purposes of this
Article experts and consultants performing missions for the Bank, shall enjoy . . .
immunity from legal process with respect to acts performed by them in their
official capacity, except when the Bank waives the immunity."
II
There are three major differences between diplomatic and international immunities. Firstly,
one of the recognized limitations of diplomatic immunity is that members of the diplomatic
staff of a mission may be appointed from among the nationals of the receiving State only
with the express consent of that State; apart from inviolability and immunity from
jurisdiction in respect of official acts performed in the exercise of their functions, nationals
enjoy only such privileges and immunities as may be granted by the receiving State.
International immunities may be specially important in relation to the State of which the
official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction of the sending State; in the case of
international immunities there is no sending State and an equivalent for the jurisdiction of
the Sending State therefore has to be found either in waiver of immunity or in some
international disciplinary or judicial procedure. Thirdly, the effective sanctions which secure
respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation
by the aggrieved State; international immunities enjoy no similar protection.14
The generally accepted principles which are now regarded as the foundation of international
immunities are contained in the ILO Memorandum, which reduced them in three basic
propositions, namely: (1) that international institutions should have a status which protects
them against control or interference by any one government in the performance of functions
for the effective discharge of which they are responsible to democratically constituted
international bodies in which all the nations concerned are represented; (2) that no country
should derive any financial advantage by levying fiscal charges on common international
funds; and (3) that the international organization should, as a collectivity of States Members,
be accorded the facilities for the conduct of its official business customarily extended to each
other by its individual member States. The thinking underlying these propositions is
essentially institutional in character. It is not concerned with the status, dignity or privileges
of individuals, but with the elements of functional independence necessary to free
international institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members.15
III
Positive international law has devised three methods of granting privileges and immunities to
the personnel of international organizations. The first is by simple conventional stipulation, as
was the case in the Hague Conventions of 1899 and 1907. The second is by internal
legislation whereby the government of a state, upon whose territory the international
organization is to carry out its functions, recognizes the international character of the
organization and grants, by unilateral measures, certain privileges and immunities to better
assure the successful functioning of the organization and its personnel. In this situation,
treaty obligation for the state in question to grant concessions is lacking. Such was the case
with the Central Commission of the Rhine at Strasbourg and the International Institute of
Agriculture at Rome. The third is a combination of the first two. In this third method, one
finds a conventional obligation to recognize a certain status of an international organization
and its personnel, but the status is described in broad and general terms. The specific
definition and application of those general terms are determined by an accord between the
organization itself and the state wherein it is located. This is the case with the League of
Nations, the Permanent Court of Justice, and the United Nations.16
The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those extended to
international officials. The connection consists in the granting, by contractual provisions, of
the relatively well-established body of diplomatic privileges and immunities to international
functionaries. This connection is purely historical. Both types of officials find the basis of their
special status in the necessity of retaining functional independence and freedom from
interference by the state of residence. However, the legal relationship between an
ambassador and the state to which he is accredited is entirely different from the relationship
between the international official and those states upon whose territory he might carry out
his functions.17
The privileges and immunities of diplomats and those of international officials rest upon
different legal foundations. Whereas those immunities awarded to diplomatic agents are a
right of the sending state based on customary international law, those granted to
international officials are based on treaty or conventional law. Customary international law
places no obligation on a state to recognize a special status of an international official or to
grant him jurisdictional immunities. Such an obligation can only result from specific treaty
provisions.18
The special status of the diplomatic envoy is regulated by the principle of reciprocity by
which a state is free to treat the envoy of another state as its envoys are treated by that
state. The juridical basis of the diplomat's position is firmly established in customary
international law. The diplomatic envoy is appointed by the sending State but it has to make
certain that the agreement of the receiving State has been given for the person it proposes
to accredit as head of the mission to that State.19
The staff personnel of an international organization — the international officials — assume a
different position as regards their special status. They are appointed or elected to their
position by the organization itself, or by a competent organ of it; they are responsible to the
organization and their official acts are imputed to it. The juridical basis of their special
position is found in conventional law,20 since there is no established basis of usage or custom
in the case of the international official. Moreover, the relationship between an international
organization and a member-state does not admit of the principle of reciprocity,21 for it is
contradictory to the basic principle of equality of states. An international organization carries
out functions in the interest of every member state equally. The international official does
not carry out his functions in the interest of any state, but in serving the organization he
serves, indirectly, each state equally. He cannot be, legally, the object of the operation of the
principle of reciprocity between states under such circumstances. It is contrary to the
principle of equality of states for one state member of an international organization to assert
a capacity to extract special privileges for its nationals from other member states on the basis
of a status awarded by it to an international organization. It is upon this principle of
sovereign equality that international organizations are built.
It follows from this same legal circumstance that a state called upon to admit an official of an
international organization does not have a capacity to declare him persona non grata.
The functions of the diplomat and those of the international official are quite different. Those
of the diplomat are functions in the national interest. The task of the ambassador is to
represent his state, and its specific interest, at the capital of another state. The functions of
the international official are carried out in the international interest. He does not represent a
state or the interest of any specific state. He does not usually "represent" the organization in
the true sense of that term. His functions normally are administrative, although they may be
judicial or executive, but they are rarely political or functions of representation, such as those
of the diplomat.
There is a difference of degree as well as of kind. The interruption of the activities of a
diplomatic agent is likely to produce serious harm to the purposes for which his immunities
were granted. But the interruption of the activities of the international official does not,
usually, cause serious dislocation of the functions of an international secretariat. 22
On the other hand, they are similar in the sense that acts performed in an official capacity by
either a diplomatic envoy or an international official are not attributable to him as an
individual but are imputed to the entity he represents, the state in the case of the diplomat,
and the organization in the case of the international official.23
IV
Looking back over 150 years of privileges and immunities granted to the personnel of
international organizations, it is clear that they were accorded a wide scope of protection in
the exercise of their functions — The Rhine Treaty of 1804 between the German Empire and
France which provided "all the rights of neutrality" to persons employed in regulating
navigation in the international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube "complete independence of territorial authorities" in
the exercise of its functions; The Covenant of the League which granted "diplomatic
immunities and privileges." Today, the age of the United Nations finds the scope of
protection narrowed. The current tendency is to reduce privileges and immunities of
personnel of international organizations to a minimum. The tendency cannot be considered
as a lowering of the standard but rather as a recognition that the problem on the privileges
and immunities of international officials is new. The solution to the problem presented by
the extension of diplomatic prerogatives to international functionaries lies in the general
reduction of the special position of both types of agents in that the special status of each
agent is granted in the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the current
direction of the law seems to be to narrow the prerogatives of the personnel of international
organizations, the reverse is true with respect to the prerogatives of the organizations
themselves, considered as legal entities. Historically, states have been more generous in
granting privileges and immunities to organizations than they have to the personnel of these
organizations.24
Thus, Section 2 of the General Convention on the Privileges and Immunities of the United
Nations states that the UN shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the Specialized Agencies likewise provides
that the specialized agencies shall enjoy immunity from every form of legal process subject to
the same exception. Finally, Article 50(1) of the ADB Charter and Section 5 of the
Headquarters Agreement similarly provide that the bank shall enjoy immunity from every
form of legal process, except in cases arising out of or in connection with the exercise of its
powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale
of securities.
The phrase "immunity from every form of legal process" as used in the UN General
Convention has been interpreted to mean absolute immunity from a state's jurisdiction to
adjudicate or enforce its law by legal process, and it is said that states have not sought to
restrict that immunity of the United Nations by interpretation or amendment. Similar
provisions are contained in the Special Agencies Convention as well as in the ADB Charter
and Headquarters Agreement. These organizations were accorded privileges and immunities
in their charters by language similar to that applicable to the United Nations. It is clear
therefore that these organizations were intended to have similar privileges and immunities.25
From this, it can be easily deduced that international organizations enjoy absolute immunity
similar to the diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign
Immunities Act was passed adopting the "restrictive theory" limiting the immunity of states
under international law essentially to activities of a kind not carried on by private persons.
Then the International Organizations Immunities Act came into effect which gives to
designated international organizations the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments. This gives the impression that the
Foreign Sovereign Immunities Act has the effect of applying the restrictive theory also to
international organizations generally. However, aside from the fact that there was no
indication in its legislative history that Congress contemplated that result, and considering
that the Convention on Privileges and Immunities of the United Nations exempts the United
Nations "from every form of legal process," conflict with the United States obligations under
the Convention was sought to be avoided by interpreting the Foreign Sovereign Immunities
Act, and the restrictive theory, as not applying to suits against the United Nations.26
On the other hand, international officials are governed by a different rule. Section 18(a) of
the General Convention on Privileges and Immunities of the United Nations states that
officials of the United Nations shall be immune from legal process in respect of words spoken
or written and all acts performed by them in their official capacity. The Convention on
Specialized Agencies carries exactly the same provision. The Charter of the ADB provides
under Article 55(i) that officers and employees of the bank shall be immune from legal
process with respect to acts performed by them in their official capacity except when the
Bank waives immunity. Section 45 (a) of the ADB Headquarters Agreement accords the same
immunity to the officers and staff of the bank. There can be no dispute that international
officials are entitled to immunity only with respect to acts performed in their official capacity,
unlike international organizations which enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the discharge of his
international functions, is immunity from local jurisdiction. There is no argument in doctrine
or practice with the principle that an international official is independent of the jurisdiction
of the local authorities for his official acts. Those acts are not his, but are imputed to the
organization, and without waiver the local courts cannot hold him liable for them. In strict
law, it would seem that even the organization itself could have no right to waive an official's
immunity for his official acts. This permits local authorities to assume jurisdiction over an
individual for an act which is not, in the wider sense of the term, his act at all. It is the
organization itself, as a juristic person, which should waive its own immunity and appear in
court, not the individual, except insofar as he appears in the name of the organization.
Provisions for immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern international organizations. The
acceptance of the principle is sufficiently widespread to be regarded as declaratory of
international law.27
V
What then is the status of the international official with respect to his private acts?
Section 18 (a) of the General Convention has been interpreted to mean that officials of the
specified categories are denied immunity from local jurisdiction for acts of their private life
and empowers local courts to assume jurisdiction in such cases without the necessity of
waiver.28 It has earlier been mentioned that historically, international officials were granted
diplomatic privileges and immunities and were thus considered immune for both private and
official acts. In practice, this wide grant of diplomatic prerogatives was curtailed because of
practical necessity and because the proper functioning of the organization did not require
such extensive immunity for its officials. Thus, the current status of the law does not maintain
that states grant jurisdictional immunity to international officials for acts of their private
lives.29 This much is explicit from the Charter and Headquarters Agreement of the ADB which
contain substantially similar provisions to that of the General Convention.
 VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the current tendency
to narrow the scope of privileges and immunities of international officials and
representatives is most apparent. Prior to the regime of the United Nations, the
determination of this question rested with the organization and its decision was final. By the
new formula, the state itself tends to assume this competence. If the organization is
dissatisfied with the decision, under the provisions of the General Convention of the United
States, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other
current dominant instruments, it may appeal to an international tribunal by procedures
outlined in those instruments. Thus, the state assumes this competence in the first instance.
It means that, if a local court assumes jurisdiction over an act without the necessity of waiver
from the organization, the determination of the nature of the act is made at the national
level.30
It appears that the inclination is to place the competence to determine the nature of an act as
private or official in the courts of the state concerned. That the prevalent notion seems to be
to leave to the local courts determination of whether or not a given act is official or private
does not necessarily mean that such determination is final. If the United Nations questions
the decision of the Court, it may invoke proceedings for settlement of disputes between the
organization and the member states as provided in Section 30 of the General Convention.
Thus, the decision as to whether a given act is official or private is made by the national
courts in the first instance, but it may be subjected to review in the international level if
questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without
waiver for acts of private life empowers the local courts to determine whether a certain act is
an official act or an act of private life," on the rationale that since the determination of such
question, if left in the hands of the organization, would consist in the execution, or non-
execution, of waiver, and since waiver is not mentioned in connection with the provision
granting immunities to international officials, then the decision must rest with local courts.32
Under the Third Restatement of the Law, it is suggested that since an international official
does not enjoy personal inviolability from arrest or detention and has immunity only with
respect to official acts, he is subject to judicial or administrative process and must claim his
immunity in the proceedings by showing that the act in question was an official act. Whether
an act was performed in the individual's official capacity is a question for the court in which a
proceeding is brought, but if the international organization disputes the court's finding, the
dispute between the organization and the state of the forum is to be resolved by negotiation,
by an agreed mode of settlement or by advisory opinion of the International Court of
Justice.33
Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction
over private acts without a waiver of immunity, the determination of the official or private
character of a particular act may pass from international to national control, Jenks proposes
three ways of avoiding difficulty in the matter. The first would be for a municipal court before
which a question of the official or private character of a particular act arose to accept as
conclusive in the matter any claim by the international organization that the act was official
in character, such a claim being regarded as equivalent to a governmental claim that a
particular act is an act of State. Such a claim would be in effect a claim by the organization
that the proceedings against the official were a violation of the jurisdictional immunity of the
organization itself which is unqualified and therefore not subject to delimitation in the
discretion of the municipal court. The second would be for a court to accept as conclusive in
the matter a statement by the executive government of the country where the matter arises
certifying the official character of the act. The third would be to have recourse to the
procedure of international arbitration. Jenks opines that it is possible that none of these
three solutions would be applicable in all cases; the first might be readily acceptable only in
the clearest cases and the second is available only if the executive government of the country
where the matter arises concurs in the view of the international organization concerning the
official character of the act. However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem. 34
One final point. The international official's immunity for official acts may be likened to a
consular official's immunity from arrest, detention, and criminal or civil process which is not
absolute but applies only to acts or omissions in the performance of his official functions, in
the absence of special agreement. Since a consular officer is not immune from all legal
process, he must respond to any process and plead and prove immunity on the ground that
the act or omission underlying the process was in the performance of his official functions.
The issue has not been authoritatively determined, but apparently the burden is on the
consular officer to prove his status as well as his exemption in the circumstances. In the
United States, the US Department of State generally has left it to the courts to determine
whether a particular act was within a consular officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the following conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and
hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from
criminal jurisdiction of the receiving State for all acts, whether private or official, and hence
he cannot be arrested, prosecuted and punished for any offense he may commit, unless his
diplomatic immunity is waived.36 On the other hand, officials of international organizations
enjoy "functional" immunities, that is, only those necessary for the exercise of the functions of
the organization and the fulfillment of its purposes.37 This is the reason why the ADB Charter
and Headquarters Agreement explicitly grant immunity from legal process to bank officers
and employees only with respect to acts performed by them in their official capacity, except
when the Bank waives immunity. In other words, officials and employees of the ADB are
subject to the jurisdiction of the local courts for their private acts, notwithstanding the
absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from every form of legal
process" accorded to ADB as an international organization. The immunity of ADB is absolute
whereas the immunity of its officials and employees is restricted only to official acts. This is in
consonance with the current trend in international law which seeks to narrow the scope of
protection and reduce the privileges and immunities granted to personnel of international
organizations, while at the same time aims to increase the prerogatives of international
organizations.
Second, considering that bank officials and employees are covered by immunity only for their
official acts, the necessary inference is that the authority of the Department of Affairs, or
even of the ADB for that matter, to certify that they are entitled to immunity is limited only
to acts done in their official capacity. Stated otherwise, it is not within the power of the DFA,
as the agency in charge of the executive department's foreign relations, nor the ADB, as the
international organization vested with the right to waive immunity, to invoke immunity for
private acts of bank officials and employees, since no such prerogative exists in the first
place. If the immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its
officials and employees. The Charter and the Headquarters Agreement are clear that the
immunity can be waived only with respect to official acts because this is only the extent to
which the privilege has been granted. One cannot waive the right to a privilege which has
never been granted or acquired.
there ruled on the issue of petitioner's non-suability on the basis of the allegations made in
the pleadings filed by the parties. This is an implicit recognition of the court's jurisdiction to
ascertain the suability or non-suability of the sovereign by assessing the facts of the case. The
Court hastened to add that when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, in some cases, the defense of sovereign immunity
was submitted directly to the local courts by the respondents through their private counsels,
or where the foreign states bypass the Foreign Office, the courts can inquire into the facts
and make their own determination as to the nature of the acts and transactions involved.
Finally, it appears from the records of this case that petitioner is a senior economist at ADB
and as such he makes country project profiles which will help the bank in deciding whether
to lend money or support a particular project to a particular country.41 Petitioner stands
charged of grave slander for allegedly uttering defamatory remarks against his secretary, the
private complainant herein. Considering that the immunity accorded to petitioner is limited
only to acts performed in his official capacity, it becomes necessary to make a factual
determination of whether or not the defamatory utterances were made pursuant and in
relation to his official functions as a senior economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.

Third, I choose to adopt the view that it is the local courts which have jurisdiction to
determine whether or not a given act is official or private. While there is a dearth of cases on
the matter under Philippine jurisprudence, the issue is not entirely novel.

The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of
the officials of a United States Naval Base inside the Philippine territory. Although a motion
to dismiss was filed by the defendants therein invoking their immunity from suit pursuant to
the RP-US Military Bases Agreement, the trial court denied the same and, after trial,
rendered a decision declaring that the defendants are not entitled to immunity because the
latter acted beyond the scope of their official duties. The Court likewise applied the ruling
enunciated in the case of Chavez vs. Sandiganbayan39 to the effect that a mere invocation of
the immunity clause does not ipso facto result in the charges being automatically dropped.
While it is true that the Chavez case involved a public official, the Court did not find any
substantial reason why the same rule cannot be made to apply to a US official assigned at the
US Naval Station located in the Philippines. In this case, it was the local courts which
ascertained whether the acts complained of were done in an official or personal capacity.

In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale,
reconveyance, specific performance and damages was filed against petitioner. Petitioner
moved to dismiss on the ground of, among others, lack of jurisdiction based on sovereign
immunity from suit, which was denied by the trial court. A motion for reconsideration, and
subsequently, a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation
for Claim of Immunity as a Jurisdictional Defense" were filed by petitioner. The trial court
deferred resolution of said motions until after trial on the merits. On certiorari, the Court
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44896 July 31, 1936
RODOLFO A. SCHNECKENBURGER, petitioner,
vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.
Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.:
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands
on June 11, 1934. He was subsequently charged in the Court of First Instance of Manila with
the crime of falsification of a private document. He objected to the jurisdiction of the court
on the ground that both under the Constitution of the United States and the Constitution of
the Philippines the court below had no jurisdiction to try him. His objection having been
overruled, he filed this petition for a writ of prohibition with a view to preventing the Court
of First Instance of Manila from taking cognizance of the criminal action filed against him.
In support of this petition counsel for the petitioner contend (1) That the Court of First
Instance of Manila is without jurisdiction to try the case filed against the petitioner for the
reason that under Article III, section 2, of the Constitution of the United States, the Supreme
Court of the United States has original jurisdiction in all cases affecting ambassadors, other
public ministers, and consuls, and such jurisdiction excludes the courts of the Philippines; and
(2) that even under the Constitution of the Philippines original jurisdiction over cases
affecting ambassadors, other public ministers, and consuls, is conferred exclusively upon the
Supreme Court of the Philippines.
This case involves no question of diplomatic immunity. It is well settled that a consul is not
entitled to the privileges and immunities of an ambassador or minister, but is subject to the
laws and regulations of the country to which he is accredited. (Ex parte Baiz, 135 U. S., 403;
34 Law. ed., 222.) A consul is not exempt from criminal prosecution for violations of the laws
of the country where he resides. (U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's
International Law [2d ed.], 423.) The substantial question raised in this case is one of
jurisdiction.
1. We find no merit in the contention that Article III, section 2, of the Constitution
of the United States governs this case. We do not deem it necessary to discuss the
question whether the constitutional provision relied upon by the petitioner
extended ex propio vigore over the Philippines. Suffice it to say that the
inauguration of the Philippine Commonwealth on November 15, 1935, has brought
about a fundamental change in the political and legal status of the Philippines. On
the date mentioned the Constitution of the Philippines went into full force and
effect. This Constitution is the supreme law of the land. Not only the members of
this court but all other officers, legislative, executive and judicial, of the
Government of the Commonwealth, are bound by oath to support the
Constitution. (Article XIII, section 2.) This court owes its own existence to the great
instrument, and derives all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the Constitution. The
Constitution provides that the original jurisdiction of this court "shall include all
cases affecting ambassadors, other public ministers, and consuls." In deciding the
instant case this court cannot go beyond this constitutional provision.
2. It remains to consider whether the original jurisdiction thus conferred upon this
court by the Constitution over cases affecting ambassadors, other public ministers,
and consuls, is exclusive. The Constitution does not define the jurisdiction of this
court in specific terms, but merely provides that "the Supreme Court shall have
such original and appellate jurisdiction as may be possessed and exercised by the
Supreme Court of the Philippine Islands at the time of the adoption of this
Constitution." It then goes on to provide that the original jurisdiction of this court
"shall include all cases affecting ambassadors, other public ministers, and consuls."
In the light of the constitutional provisions above adverted to, the question arises whether
the original jurisdiction possessed and exercised by the Supreme Court of the Philippine
Islands at the time of the adoption of the Constitution was exclusive.
The original jurisdiction possessed and exercised by the Supreme Court of the Philippine
Islands at the time of the adoption of the Constitution was derived from section 17 of Act No.
136, which reads as follows: The Supreme Court shall have original jurisdiction to issue writs
of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in
the manner prescribed in the Code of Civil Procedure, and to hear and determine the
controversies thus brought before it, and in other cases provided by law." Jurisdiction to
issue writs of quo warranto, certiorari, mandamus, prohibition, and habeas corpus was also
conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs.
197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised
by the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution
was not exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as
this is the same original jurisdiction vested in this court by the Constitution and made to
include all cases affecting ambassadors, other public ministers, and consuls, it follows that
the jurisdiction of this court over such cases is not exclusive.
The conclusion we have reached upon this branch of the case finds support in the pertinent
decisions of the Supreme Court of the United States. The Constitution of the United States
provides that the Supreme Court shall have "original jurisdiction" in all cases affecting
ambassadors, other public ministers, and consuls. In construing this constitutional provision,
the Supreme Court of the United States held that the "original jurisdiction thus conferred
upon the Supreme Court by the Constitution was not exclusive jurisdiction, and that such
grant of original jurisdiction did not prevent Congress from conferring original jurisdiction in
cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors
vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)
3. The laws in force in the Philippines prior to the inauguration of the Commonwealth
conferred upon the Courts of the First Instance original jurisdiction in all criminal cases to
which a penalty of more than six months' imprisonment or a fine exceeding one hundred
dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction included the trial of
criminal actions brought against consuls for, as we have already indicated, consuls, not being
entitled to the privileges and immunities of ambassadors or ministers, are subject to the laws
and regulations of the country where they reside. By Article XV, section 2, of the
Constitution, all laws of the Philippine Islands in force at the time of the adoption of the
Constitution were to continue in force until the inauguration of the Commonwealth;
thereafter, they were to remain operative, unless inconsistent with the Constitution until
amended, altered, modified, or repealed by the National Assembly. The original jurisdiction
granted to the Courts of First Instance to try criminal cases was not made exclusively by any,
law in force prior to the inauguration of the Commonwealth, and having reached the
conclusion that the jurisdiction conferred upon this court by the Constitution over cases
affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction,
the laws in force at the time of the adoption of the Constitution, granting the Courts of First
Instance jurisdiction in such cases, are not inconsistent with the Constitution, and must be
deemed to remain operative and in force, subject to the power of the National Assembly to
amend alter, modify, or repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S.
Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)
We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the
petitioner, an that the petition for a writ of prohibition must be denied. So ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
In my humble opinion, there are three reasons why the jurisdiction of this court over the
petitioner in the instant case is concurrent and not exclusive. The strictly legal reason is set
forth in the preceding illuminating opinion. The other reasons are (a) historical and based on
what I consider is the (b) theory upon which the grant of legislative authority under our
Constitution is predicated.
(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors,
other public ministers, and consuls, has been taken from the Constitution of the United
States, considerable light would be gained by an examination of the history and
interpretation thereof in the United States.
The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the
Supreme Court of the United States, the only national court under the plan, authority to hear
and determine "by way of appeal, in the dernier resort . . . all cases touching the rights of
ambassadors . . . ." This clause, however, was not approved. On July 18, the Convention of
1787 voted an extraordinarily broad jurisdiction to the Supreme Court extending "to cases
arising under laws passed by the general legislature, and to such other questions as involve
the national peace and harmony." This general proposition was considerably narrowed by
Randolph in his draft of May 29 which, however, did not mention anything about
ambassadors, other public ministers and consuls. But the Committee of Detail, through
Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of the
Supreme Court shall extend . . . to all cases affecting ambassadors, other public ministers and
consuls; . . . In . . . cases affecting ambassadors, other public ministers and consuls, . . . this
jurisdiction shall be original . . . ."On September 12, the Committee on Style reported the
provision as follows: "Article III, Section 2. The judicial power shall extend . . . to all cases
affecting ambassadors, other public ministers and consuls . . . In (all) cases affecting
ambassadors, other public ministers and consuls . . . the Supreme Court shall have original
jurisdiction." This provision was approved in the convention with hardly any amendment or
debate and is now found in clause 2, section 2 of Article III of the Constitution of the United
States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William
M. Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal
Convention of 1787, Yale University Press, 1934, 3 vols.; Warren, The Making of the
Constitution, Boston, 1928, pp. 534-537.)
The word "original", however, was early interpreted as not exclusive. Two years after the
adoption of the Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24,
1789, 1 Stat., c. 20, 687) was approved by the first Congress creating the United States
District and Circuit Courts which were nisi prius courts, or courts of first instance which dealt
with different items of litigation. The district courts are now the only federal courts of first
instance, the circuit courts having been abolished by the Act of March 3, 1911, otherwise
known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with
jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-
consuls and the Supreme Court of the United States with original but not exclusive
jurisdiction of all suits in which a consul or vice-consul shall be a party. By the passage of the
Act of February 18, 1875 (18 Stat., 470, c. 137), the clause giving the federal courts exclusive
jurisdiction was repealed and, since then state courts have had concurrent jurisdiction with
the federal courts over civil or criminal proceedings against a consul or vice-consul. At the
present time, the federal courts exercise exclusive jurisdiction "of suits or proceedings
against ambassadors or other or other public ministers, or their domestics or domestic
servants, as a court of law can have consistently with the law of nations; and original, but not
exclusive, jurisdiction, of all suits brought by ambassadors or other public ministers, or in
which a consul or vice-consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting
sec. 687 of the Act of September 24, 1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial
Code, 4th ed., by Babbit, 1934, sec. 233.) The district courts now have original jurisdiction of
all suits against consuls and vice-consuls." (Act of March 3, 1911, 36 Stat., 1093; 28 U. S. C. A.,
sec. 41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 24, par. 18.)
The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the
Congress of the United States. It has remained essentially unchanged for more than 145
years. It was prepared chiefly by Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7,
1789) one of the ablest jurists in the Constitutional Convention, who was later Chief Justice
of the Supreme Court of the United States (1796-1800). It is interesting to note that 10 of the
18 senators and 8 of the members of the House of the first Congress had been among the 55
delegates who actually attended the Convention that adopted the federal Constitution
(Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99). When,
therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court
original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a
party, express legislative interpretation as to the meaning of the word "original" as not being
exclusive was definitely made and this interpretation has never been repudiated. As stated
by the Supreme Court of the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct.,
437; 28 Law. ed., 482):
In view of the practical construction put on this provision of the Constitution by
Congress, at the very moment of the organization of the government, and of the
significant fact that, from 1789 until now, no court of the United States has ever in
its actual adjudications determined to the contrary, we are unable to say that it is
not within the power of Congress to grant to the inferior courts of the United
States jurisdiction in cases where the Supreme Court has been vested by the
Constitution with original jurisdiction. It rests with the legislative department of the
government to say to what extent such grants shall be made, and it may safely be
assumed that nothing will ever be done to encroach upon the high privileges of
those for whose protection the constitutional provision was intended. At any rate,
we are unwilling to say that the power to make the grant does not exist.
Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as
observed by Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31
Law. ed., 69), the question has given rise to some differences of opinion among the earlier
members of the Supreme Court of the United States. (See, for instance, dissenting opinion of
Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388.) Reliance was had on more
or less general expressions made by Chief Justice Marshall in the case of Marbury vs.
Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:
on the unlimited discretion of the legislature in the apportionment of the judicial
power; and it is against this argument that the reasoning of the court is directed.
They say that, if such had been the intention of the article, "it would certainly have
been useless to proceed farther than to define the judicial power, and the tribunals
in which it should be vested." The court says, that such a construction would
render the clause, dividing the jurisdiction of the court into original and appellate,
totally useless; that "affirmative words are often, in their operation, negative of
other objects than those which are affirmed; and, in this case (in the case of
Marbury vs. Madison), a negative or exclusive sense must be given to them, or they
have no operation at all." "It cannot be presumed," adds the court, "that any clause
in the Constitution is intended to be without effect; and, therefore, such a
construction is inadmissible, unless the words require it." The whole reasoning of
the court proceeds upon the idea that the affirmative words of the clause giving
one sort of jurisdiction, must imply a negative of any other sort of jurisdiction,
because otherwise the words would be totally inoperative, and this reasoning is
advanced in a case to which it was strictly applicable. If in that case original
jurisdiction could have been exercised, the clause under consideration would have
been entirely useless. Having such cases only in its view, the court lays down a
principle which is generally correct, in terms much broader than the decision, and
not only much broader than the reasoning with which that decision is supported,
but in some instances contradictory to its principle. The reasoning sustains the
negative operation of the words in that case, because otherwise the clause would
have no meaning whatever, and because such operation was necessary to give
effect to the intention of the article. The effort now made is, to apply the
conclusion to which the court was conducted by that reasoning in the particular
case, to one in which the words have their full operation when understood
affirmatively, and in which the negative, or exclusive sense, is to be so used as to
defeat some of the great objects of the article. To this construction the court
cannot give its assent. The general expressions in the case of Marbury vs. Madison
must be understood with the limitations which are given to them in this opinion;
limitations which in no degree affect the decision in that case, or the tenor of its
reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)

What the Supreme Court in the case of Marbury vs. Madison held then was that Congress
"If congress remains at liberty to give this court appellate jurisdiction, where the constitution
could not extend its original jurisdiction beyond the cases expressly mentioned in the
has declared their jurisdiction shall be original; and original jurisdiction where the
Constitution, the rule of construction being that affirmative words of the Constitution
constitution has declared it shall be appellate; the distribution of jurisdiction, made in the
declaring in what cases the Supreme Court shall have original jurisdiction must be construed
constitution, is form without substance." But Chief Justice Marshall who penned the decision
negatively as to all other cases. (See Ex parte Vallandigham [1864], 1 Wall., 243, 252; 17 Law.
in this case in 1803 had occasion later, in 1821, to explain the meaning and extent of the
ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat., 305, 330; 4 Law. ed., 97; U. S. vs.
pronouncements made in the Marbury case. He said:
Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.

In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed.,
It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis
60), the single question before the court, so far as that case can be applied to this,
vs. Packard (11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state
was, whether the legislature could give this court original jurisdiction in a case in
court of New York over a civil suit against a foreign consul was denied solely on the ground
which the Constitution had clearly not given it, and in which no doubt respecting
that jurisdiction had been conferred in such a case upon the district courts of the United
the construction of the article could possibly be raised. The court decided, and we
States exclusively of the state courts. Such a ground, says Justice Harlan in Bors vs. Preston
think very properly, that the legislature could not give original jurisdiction in such a
([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would probably not have been given
case. But, in the reasoning of the court in support of this decision, some
had it been believed that the grant of original jurisdiction to the Supreme Court deprived
expressions are used which go far beyond it. The counsel for Marbury had insisted
Congress of the power to confer concurrent original jurisdiction in such cases upon
subordinate courts of the Union, concluding that the decision in the case "may be regarded,
as an affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such
cases, also, to District Courts of the United States." Of the seven justices who concurred in
the judgment in the case of Davis, five participated in the decision of Osborn vs. Bank of the
United States ([1824], 9 Wheat., 738; 6 Law. ed., 204), also penned by Chief Justice Marshall
and relied upon as authority together with Marbury vs. Madison, supra.
The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The
question involved in that case was whether the Circuit Court then existing had jurisdiction
under the Constitution and laws of the United States to hear and determine any suit
whatever against the consul of a foreign government. Justice Harlan said:
The Constitution declares that "The judicial power of the United States shall extend . . . to all
cases affecting ambassadors or other public ministers and consuls;" to controversies
between citizens of a state and foreign citizens or subjects; that "In all cases affecting
ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original
jurisdiction;" and that in all other cases previously mentioned in the same clause "The
Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions
and under such regulations as the Congress shall make." The Judiciary Act of 1789 invested
the District Courts of the United States with jurisdiction, exclusively of the courts of the
several States, of all suits against consuls or vice-consuls, except for offenses of a certain
character; this court, with "Original, but not exclusive, jurisdiction of all suits . . . in which a
consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil suits in
which an alien is a party. (l Stat. at L., 76-80.) In this act we have an affirmance, by the first
Congress — many of whose members participated in the Convention which adopted the
Constitution and were, therefore, conversant with the purposes of its framers — of the
principle that the original jurisdiction of this court of cases in which a consul or vice-consul is
a party, is not necessarily exclusive, and that the subordinate courts of the Union may be
invested with jurisdiction of cases affecting such representatives of foreign governments. On
a question of constitutional construction, this fact is entitled to great weight.
In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the
earlier case of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of
Gittings, it was held that neither public policy nor convenience would justify the Supreme
Court in implying that Congress is prohibited from giving original jurisdiction in cases
affecting consuls to the inferior judicial tribunals of the United States. Chief Justice Taney
said:
If the arrangement and classification of the subjects of jurisdiction into appellate
and original, as respects the Supreme Court, do not exclude that tribunal from
appellate power in the cases where original jurisdiction is granted, can it be right,
from the same clause, to imply words of exclusion as respects other courts whose
jurisdiction is not there limited or prescribed, but left for the future regulation of
Congress? The true rule in this case is, I think, the rule which is constantly applied
to ordinary acts of legislation, in which the grant of jurisdiction over a certain
subject-matter to one court, does not, of itself, imply that that jurisdiction is to be
exclusive. In the clause in question, there is nothing but mere affirmative words of
grant, and none that import a design to exclude the subordinate jurisdiction of
other courts of the United States on the same subject-matter. (See also U.S. vs.
Ravara [1793], 2 Dall., 297; 1 Law. ed., 388; United States vs. Louisiana [1887], 123
U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U. S., 403; 10 S. Ct.,
854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y.,
1890]; 41 Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41
Law. ed., 1045; Graham vs. Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs.
Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St. Luke's Hospital vs. Barclay [C.
C. N. Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14 Fed.,
65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco
[D. C. Cal., 1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the
jurisdiction of circuit courts exclusive of state courts over aliens, no exception being made as
to those who were consuls, was maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)
From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III
of the Constitution of the United States it seems clear that the word "original" in reference to
the jurisdiction of Supreme Court of the United States over cases affecting ambassadors,
other public ministers and consuls, was never intended to be exclusive as to prevent the
Congress from vesting concurrent jurisdiction over cases affecting consuls and vice-consuls in
other federal courts.
It should be observed that the Philadelphia Convention of 1787 placed cases affecting the
official representatives of foreign powers under the jurisdiction of Federal Supreme Court to
prevent the public peace from being jeopardized. Since improper treatment of foreign
ambassadors, other public ministers and consuls may be a casus belli, it was thought that the
federal government, which is responsible for their treatment under international law, should
itself be provided with the means to meet the demands imposed by international duty.
(Tucker, The Constitution of the United States [1899], vol. II, 760, 772; vide, The Federalist,
No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which
international law establishes between ambassadors and other public ministers, on the one
hand, and consuls and other commercial representatives, on the other, Congress saw it fit to
provide in one case a rule different from the other, although as far as consuls and vice-
consuls are concerned, the jurisdiction of the Federal Supreme Court, as already observed,
though original is not exclusive. But in the United States, there are two judicial systems,
independent one from the other, while in the Philippines there is but one judicial system. So
that the reason in the United States for excluding certain courts — the state courts — from
taking cognizance of cases against foreign representatives stationed in the United States
does not obtain in the Philippines where the court of the lowest grade is as much a part of an
integrated system as the highest court.
Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly
Philippine courts are not federal courts and they are not governed by the Judiciary Acts of
the United States. We have a judicial system of our own, standing outside the sphere of the
American federal system and possessing powers and exercising jurisdiction pursuant to the
provisions of our own Constitution and laws.
The jurisdiction of our courts over consuls is defined and determined by our Constitution and
laws which include applicable treaties and accepted rules of the laws of nations. There are no
treaties between the United States and Uruguay exempting consuls of either country from
the operation of local criminal laws. Under the generally accepted principles of international
law, declared by our Constitution as part of the law of the nation (Art. II sec. 3, cl. 2), consuls
and vice-consuls and other commercial representatives of foreign nations do not possess the
status and can not claim the privilege and immunities accorded to ambassadors and
ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the
Constitution, sec. 1660; Mathews, The American Constitutional System [1932], 204, 205;
Gittings vs. Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal., 639; 45 Pac.,
676; 2 C. J., 9 R. C. L., 161.) The only provisions touching the subject to which we may refer
are those found in the Constitution of the Philippines. Let us trace the history of these
provisions.
The report of the committee on the Judicial Power, submitted on September 29, 1934, did
not contain any provisions regarding cases affecting ambassadors, other public ministers and
consuls. The draft of the sub-committee of seven of the Sponsorship Committee, submitted
on October 20, 1934, however, contains the following provision:
Article X, Section 2. The Supreme Court shall have such original jurisdiction as may
be possessed and exercised by the present Supreme Court of the Philippine Islands
at the time of the adoption of this Constitution, which jurisdiction shall include all
cases affecting ambassadors, other foreign ministers and consuls . . . ." The Special
Committee on the Judiciary, composed principally of Delegates Vicente J. Francisco
and Norberto Romualdez, included in its report the provisions which now appear in
sections 2 and 3 of Article VIII of the Constitution. Section 2 provides:
The National Assembly shall have the power to define, prescribed, and apportion
the jurisdiction of the various courts, but may not deprive the Supreme Court of its
original jurisdiction over cases affecting ambassadors, other ministers and consuls .
. . . And the second sentence of section 3 provides:
The original jurisdiction of the Supreme Court shall include all cases affecting
ambassadors, other public ministers and consuls.
The provision in our Constitution in so far as it confers upon our Supreme Court "original
jurisdiction over cases affecting ambassadors, other public ministers and consuls" is literally
the same as that contained in clause 2, section 2 of Article III of the United States
Constitution.
In the course of the deliberation of the Constitutional Convention, some doubt was
expressed regarding the character of the grant of "original jurisdiction" to our Supreme
Court. An examination of the records of the proceedings of the Constitutional convention
show that the framers of our Constitution were familiar with the history of, and the judicial
construction placed on, the same provision of the United States Constitution. In order to end
what would have been a protracted discussion on the subject, a member of the Special
Committee on the Judiciary gave the following information to the members of the
Convention:
. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer
constar que la interpretacion que debe dard a la ultima parte de dicho articulo es la misma
interpretacion que siempre se ha dado a semejante disposicion en la Constitucion de los
Estados Unidos. (January 16,1935.) Without further discussion, the provision was then and
there approved.
It thus appears that the provision in question has been given a well-settled meaning in the
United States — the country of its origin. It has there received definite and hitherto
unaltered legislative and judicial interpretation. And the same meaning was ascribed to it
when incorporated in our own Constitution. To paraphrase Justice Gray of the Supreme
Court of the United States, we are justified in interpreting the provision of the Constitution in
the light of the principles and history with which its framers were familiar. (United States vs.
Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval in
Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.)
(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous
adherence to precedents. In referring to the history of this provision of our Constitution it is
realized that historical discussion while valuable is not necessarily decisive. Rationally,
however, the philosophical reason for the conclusion announced is not far to seek if certain
principles of constitutional government are borne in mind. The constitution is both a grant
of, and a limitation upon, governmental powers. In the absence of clear and unequivocal
restraint of legislative authority, the power is retained by the people and is exercisable by
their representatives in their legislature. The rule is that the legislature possess plenary
power for all purposes of civil government. A prohibition to exercise legislative power is the
exception. (Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or
restrictions are found either in the language used, or in the purpose held in view as well as
the circumstances which led to the adoption of the particular provision as part of the
fundamental law. (Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W., 811; 108 Am. St. Rep., 929.)
Subject to certain limitations, the Filipino people, through their delegates, have committed
legislative power in a most general way to the National Assembly has plenary legislative
power in all matters of legislation except as limited by the constitution. When, therefore, the
constitution vests in the Supreme Court original jurisdiction in cases affecting ambassadors,
other public ministers and consuls, without specifying the exclusive character of the grant,
the National Assembly is not deprived of its authority to make that jurisdiction concurrent. It
has been said that popular government lives because of the inexhaustible reservoir of power
behind. It is unquestionable that the mass of powers of government is vested in the
representatives of the people, and that these representatives are no further restrained under
our system than by the express language of the instrument imposing the restraint, or by
particular provisions which, by clear intendment, have that effect. (Angara vs. Electoral
Commission, p.139, ante.) What the Constitution prohibits is merely the deprivation of the
Supreme Court of its original jurisdiction over cases affecting ambassadors, other public
ministers and consuls and while it must be admitted that original jurisdiction if made
concurrent no longer remains exclusive, it is also true that jurisdiction does not cease to be
original merely because it is concurrent.
It is also quite true that concurrent original jurisdiction in this class of cases would mean the
sharing of the Supreme Court with the most inferior courts of cases affecting ambassadors,
other public ministers and consuls such that the Supreme Court would have concurrent
jurisdiction with the lowest courts in our judicial hierarchy, the justice of the peace of the
courts, in a petty case for the instance, the violation of a municipal ordinance affecting the
parties just mentioned. However, no serious objection to these result can be seen other that
the misinterpreted unwillingness to share this jurisdiction with a court pertaining to the
lowest category in our judicial organization. Upon the other hand, the fundamental reasoning
would apply with equal force if the highest court of the land is made to take recognizance
exclusively of a case involving the violation of the municipal ordinance simply because of the
character of the parties affected. After alluding to the fact that the position of consul of a
foreign government is sometimes filled by a citizen of the United States (and this also true in
the Philippines) Chief Justice Taney, in Gittings vs. Crawford, supra, observed:
pursuant thereto are in force. The fact that the National Assembly has not enacted any law
determining what courts of the of the Philippines shall exercise concurrent jurisdiction with
the Supreme Court is of no moment. This can not mean and should not be interpreted to
mean that the original jurisdiction vested in the Supreme Court by the Constitution is not
concurrent with other national courts of inferior category.
The respondent judge of the Court of First Instance of the City of Manila having jurisdiction
to take cognizance of the criminal case brought against the petitioner, the writ of prohibition
should be denied.

It could hardly have been the intention of the statesmen who framed our
constitution to require that one of our citizens who had a petty claim of even less
than five dollars against another citizen, who had been clothed by some foreign
government with the consular office, should be compelled to go into the Supreme
Court to have a jury summoned in order to enable him to recover it; nor could it
have been intended, that the time of that court, with all its high duties to perform,
should be taken up with the trial of every petty offense that might be committed
by a consul by any part of the United States; that consul, too, being often one of
our own citizens.

Probably, the most serious objection to the interpretation herein advocated is, that
considering the actual distribution of jurisdiction between the different courts in our
jurisdiction, there may be cases where the Supreme Court may not actually exercise either
original — whether exclusive or concurrent — or appellate jurisdiction, notwithstanding the
grant of original jurisdiction in this class of cases to the Supreme Court. If, for instance, a
criminal case is brought either in a justice of the peace court or in a Court of First Instance
against a foreign consul and no question of law is involved, it is evident that in case of
conviction, the proceedings will terminate in the Court Appeals and will not reach the
Supreme Court. In this case, the Supreme Court will be deprived of all jurisdiction in a case
affecting a consul notwithstanding the grant thereto in the Constitution of original
jurisdiction in all cases affecting consuls. This is a situation, however, created not by the
Constitution but by existing legislation, and the remedy is in the hands of the National
Assembly. The Constitution cannot deal with every casus omissus, and in the nature of
things, must only deal with fundamental principles, leaving the detail of administration and
execution to the other branches of the government. It rests with the National Assembly to
determine the inferior courts which shall exercise concurrent original jurisdiction with the
Supreme Court in cases affecting ambassadors, other public ministers and consuls,
considering the nature of the offense and irrespective of the amount of controversy. The
National Assembly may as in the United States (Cooley, Constitutional Law, 4th ed. [1931],
sec. 4, p. 156), provide for appeal to the Supreme Court in all cases affecting foreign
diplomatic and consular representatives.

Before the approval of the Constitution, jurisdiction over consuls was exercisable by our
courts. This is more so now that the Independence Law and Constitution framed and adopted
 FIRST DIVISION
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425,
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner
Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of
Pasig City. The criminal charge followed a "buy-bust operation" conducted by the Philippine
police narcotic agents in the house of Minucher, an Iranian national, where a quantity of
heroin, a prohibited drug, was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who would, in due time, become one of
the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio
Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court
(RTC), Branch 19, of Manila for damages on account of what he claimed to have been
trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what
it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the
Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of
the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan
and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay in the Philippines. He headed
the Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house
and introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the
military. Jose Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto
Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose
Iñigo, the defendant expressed his interest in buying caviar. As a matter of fact, he bought
two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per month. During their introduction
in that meeting, the defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement
Administration, Department of Justice, of the United States, and gave his address as US
Embassy, Manila. At the back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for
his wife and the wife of a countryman named Abbas Torabian. The defendant told him that
he [could] help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was
more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to see
plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at
Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the
merchandize but for the reason that the defendant was not yet there, he requested the
restaurant people to x x x place the same in the refrigerator. Defendant, however, came and
plaintiff gave him the caviar for which he was paid. Then their conversation was again
focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at
Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at
$27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant
did not yet have the money, they agreed that defendant would come back the next day. The
following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff,
and the latter, in turn, gave him the pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's
house and directly proceeded to the latter's bedroom, where the latter and his countryman,
Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be leaving the Philippines very soon and
requested him to come out of the house for a while so that he can introduce him to his
cousin waiting in a cab. Without much ado, and without putting on his shirt as he was only in
his pajama pants, he followed the defendant where he saw a parked cab opposite the street.
To his complete surprise, an American jumped out of the cab with a drawn high-powered
gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the
house by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from defendant's
attaché case, he took something and placed it on the table in front of the plaintiff. They also
took plaintiff's wife who was at that time at the boutique near his house and likewise
arrested Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed and why the
privacy of his house, especially his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but
the defendant told him to `shut up.’ He was nevertheless told that he would be able to call
for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet
his cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the
carpets and another $8,000.00 which he also placed in the safe together with a bracelet
worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered missing upon
his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he
bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There was, therefore, nothing left in
his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in
various newspapers, particularly in Australia, America, Central Asia and in the Philippines. He
was identified in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the
Philippines, but also in America and in Germany. His friends in said places informed him that
they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo
and moved for extension of time to file an answer pending a supposed advice from the
United States Department of State and Department of Justice on the defenses to be raised.
The trial court granted the motion. On 27 October 1988, Scalzo filed another special
appearance to quash the summons on the ground that he, not being a resident of the
Philippines and the action being one in personam, was beyond the processes of the court.
The motion was denied by the court, in its order of 13 December 1988, holding that the filing
by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary
appearance equivalent to service of summons which could likewise be construed a waiver of
the requirement of formal notice. Scalzo filed a motion for reconsideration of the court
order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative
relief. Scalzo argued that in cases involving the United States government, as well as its
agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1)
for both the Department of State and the Department of Justice to agree on the defenses to
be raised and (2) to refer the case to a Philippine lawyer who would be expected to first
review the case. The court a quo denied the motion for reconsideration in its order of 15
October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No.
17023, assailing the denial. In a decision, dated 06 October 1989, the appellate court denied
the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a
petition for review on certiorari, docketed G.R. No. 91173, to this Court. The petition,
however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the
Court added, Scalzo had failed to show that the appellate court was in error in its questioned
judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring
Scalzo in default for his failure to file a responsive pleading (answer) and (b) setting the case
for the reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order
of default and to admit his answer to the complaint. Granting the motion, the trial court set
the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint
and raised the affirmative defenses (a) of Minucher’s failure to state a cause of action in his
complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely
an agent of the Drug Enforcement Administration of the United States Department of Justice.
Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and expenses
of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo
filed a motion to dismiss the complaint on the ground that, being a special agent of the
United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May
1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and
faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion to
dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed
G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking
that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to
the Court of Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07
August 1990. On 31 October 1990, the Court of Appeals promulgated its decision sustaining
the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him.
Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992,
penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of
the appellate court and remanded the case to the lower court for trial. The remand was
ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of
Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient
allegations to the effect that Scalzo committed the imputed acts in his personal capacity and
outside the scope of his official duties and, absent any evidence to the contrary, the issue on
Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial
court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered
for the plaintiff, who successfully established his claim by sufficient evidence, against the
defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the sum of
P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court
on this judgment to answer for the unpaid docket fees considering that the plaintiff in this
case instituted this action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him
that he was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless,
should be held accountable for the acts complained of committed outside his official duties.
On appeal, the Court of Appeals reversed the decision of the trial court and sustained the
defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term
of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State"
pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1)
whether or not the doctrine of conclusiveness of judgment, following the decision rendered
by this Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving
the appeal to it in an entirely different manner, and (2) whether or not Arthur Scalzo is
indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require
1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the
parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an
identity of the parties, subject matter and causes of action.3 Even while one of the issues
submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in
ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with
the Vienna Convention on Diplomatic Relations" - is also a pivotal question raised in the
instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed
on 13 June 1990, unequivocally states that he would present documentary evidence
consisting of DEA records on his investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus reserved his right to present evidence
in support of his position, which is the basis for the alleged diplomatic immunity, the barren
self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable,
intelligent and fair resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his functions as
an agent of the United States Drugs Enforcement Agency as "conducting surveillance
operations on suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then)
would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department
of Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the
Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3');
and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol,
Department of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed
to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy
accordingly advised the Executive Department of the Philippine Government that Scalzo was
a member of the diplomatic staff of the United States diplomatic mission from his arrival in
the Philippines on 14 October 1985 until his departure on 10 August 1988; (2) that the United
States Government was firm from the very beginning in asserting the diplomatic immunity of
Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on
Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the
Department of Foreign Affairs to take appropriate action to inform the trial court of Scalzo’s
diplomatic immunity. The other documentary exhibits were presented to indicate that: (1)
the Philippine government itself, through its Executive Department, recognizing and
respecting the diplomatic status of Scalzo, formally advised the "Judicial Department" of his
diplomatic status and his entitlement to all diplomatic privileges and immunities under the
Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic
Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of
investigation on the surveillance and subsequent arrest of Minucher, the certification of the
Drug Enforcement Administration of the United States Department of Justice that Scalzo was
a special agent assigned to the Philippines at all times relevant to the complaint, and the
special power of attorney executed by him in favor of his previous counsel6 to show (a) that
the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member
of the diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986,
with the cooperation of the Philippine law enforcement officials and in the exercise of his
functions as member of the mission, he investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself recognized
that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988)
was listed as being an Assistant Attaché of the United States diplomatic mission and
accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law
enforcement agencies on narcotic and drug control programs upon the request of the host
country, 2) to establish and maintain liaison with the host country and counterpart foreign
law enforcement officials, and 3) to conduct complex criminal investigations involving
international criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary
law and, by the time of its ratification on 18 April 1961, its rules of law had long become
stable. Among the city states of ancient Greece, among the peoples of the Mediterranean
before the establishment of the Roman Empire, and among the states of India, the person of
the herald in time of war and the person of the diplomatic envoy in time of peace were
universally held sacrosanct.7 By the end of the 16th century, when the earliest treatises on
diplomatic law were published, the inviolability of ambassadors was firmly established as a
rule of customary international law.8 Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the preeminent
embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter a
diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic
mission involve, by and large, the representation of the interests of the sending state and
promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors
or nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios
accredited to the heads of states; and (c) charges d' affairs12 accredited to the ministers of
foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the diplomatic staff,
the administrative staff and the technical and service staff. Only the heads of missions, as
well as members of the diplomatic staff, excluding the members of the administrative,
technical and service staff of the mission, are accorded diplomatic rank. Even while the
Vienna Convention on Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested
with blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus
impliedly withholding the same privileges from all others. It might bear stressing that even
consuls, who represent their respective states in concerns of commerce and navigation and
perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the
traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason
that they are not charged with the duty of representing their states in political matters.
Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of
the United States diplomatic mission and was accredited as such by the Philippine
Government. An attaché belongs to a category of officers in the diplomatic establishment
who may be in charge of its cultural, press, administrative or financial affairs. There could
also be a class of attaches belonging to certain ministries or departments of the government,
other than the foreign ministry or department, who are detailed by their respective
ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of
mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host
country and submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the diplomatic
mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414,
757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991
and 17 November 1992. The presentation did nothing much to alleviate the Court's initial
reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic
immunity, thereby divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent.
Setting aside for the moment the issue of authenticity raised by the petitioner and the
doubts that surround such claim, in view of the fact that it took private respondent one (1)
year, eight (8) months and seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for a first extension of time to file
the Answer because the Departments of State and Justice of the United States of America
were studying the case for the purpose of determining his defenses, before he could secure
the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of
argument that such note is authentic, the complaint for damages filed by petitioner cannot
be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done
in his official capacity. Nothing supports this self-serving claim other than the so-called
Diplomatic Note. x x x. The public respondent then should have sustained the trial court's
denial of the motion to dismiss. Verily, it should have been the most proper and appropriate
recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose
belated issuance is even suspect and whose authenticity has not yet been proved. The undue
haste with which respondent Court yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued
by the Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C.
Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from 14 October
1985 up to 10 August 1988) was listed as an Assistant Attaché of the United States diplomatic
mission and was, therefore, accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the supposed bases for the belated
issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive
branch of the government. In World Health Organization vs. Aquino,15 the Court has
recognized that, in such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that should particularly
be no less than compelling, in its post litem motam issuances. It might be recalled that the
privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting
for, has formulated its standards for recognition of a diplomatic agent. The State Department
policy is to only concede diplomatic status to a person who possesses an acknowledged
diplomatic title and "performs duties of diplomatic nature."17 Supplementary criteria for
accreditation are the possession of a valid diplomatic passport or, from States which do not
issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one
years of age, and performing diplomatic functions on an essentially full-time basis.18
Diplomatic missions are requested to provide the most accurate and descriptive job title to
that which currently applies to the duties performed. The Office of the Protocol would then
assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine of
State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of a
foreign sovereign from suit20 and, with the emergence of democratic states, made to attach
not just to the person of the head of state, or his representative, but also distinctly to the
state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed to be, in
effect, suing the state itself. The proscription is not accorded for the benefit of an individual
but for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one
another.22 The implication, in broad terms, is that if the judgment against an official would
require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and
special officers of the Air Force Office of Special Investigators charged with the duty of
preventing the distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a
moment be imagined that they were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued. x x x As they have acted on behalf
of the government, and within the scope of their authority, it is that government, and not the
petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26
elaborates:
"It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33
SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts
of government officials or officers are not acts of the State, and an action against the officials
or officers by one whose rights have been invaded or violated by such acts, for the protection
of his rights, is not a suit against the State within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a
suit against the State within the constitutional provision that the State may not be sued
without its consent. The rationale for this ruling is that the doctrine of state immunity cannot
be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith or
beyond the scope of his authority and jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only
as long as it can be established that he is acting within the directives of the sending state. The
consent of the host state is an indispensable requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both involve officers and personnel of the United States,
stationed within Philippine territory, under the RP-US Military Bases Agreement. While
evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the consent
or imprimatur of the Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of
the two countries, certifications from officials of both the Philippine Department of Foreign
Affairs and the United States Embassy, as well as the participation of members of the
Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of
Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of
the latter but they give enough indication that the Philippine government has given its
imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of Scalzo has tasked him to
conduct surveillance on suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the arrest. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the
United States Drug Enforcement Agency allowed by the Philippine government to conduct
activities in the country to help contain the problem on the drug traffic, is entitled to the
defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED STATES ARMY,
respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against the
Commanding General Philippine-Ryukyus Command, United States Army, who is alleged to
have petitioner under custody and to have appointed a General Court-Martial to try
petitioner in connection with an offense over which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States Army in the
Philippines, who has been charged with disposing in the Port of Manila Area of things
belonging to the United States Army, in violation of the 94th Article of War of the United
States. He has been arrested for that reason and a General Court-Martial appointed by
respondent tried and found him guilty and sentenced him to 15 years imprisonment. This
sentence, however, is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has jurisdiction over
all offenses committed within its territory, but it may, by treaty or by agreement, consent
that the United States or any other foreign nation, shall exercise jurisdiction over certain
offenses committed within certain portions of said territory. On March 11, 1947, the
Republic of the Philippines and the Government of the United States of America, entered
into an agreement concerning military bases, and Article XIII thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the right to exercise
jurisdiction over the following offenses:
(a) Any offense committed by any person within any base except where
the offender and offended parties are both Philippine citizens (not
members of the armed forces of the United States on active duty) or the
offense is against the security of the Philippines;
(b) Any offense committed outside the bases by any member of the
armed forces of the United States in which the offended party is also a
member of the armed forces of the United States; and
(c) Any offense committed outside the bases by any member of the
armed forces of the United States against the security of the United
States.
2. The Philippines shall have the right to exercise jurisdiction over all other offenses
committed outside the bases by any member of the armed forces of the United
States.
3. Whenever for special reasons the United States may desire not to exercise the
jurisdiction reserved to it in paragraphs 1 and 6 of this Article, the officer holding
the offender in custody shall so notify the fiscal (prosecuting attorney) of the city or
province in which the offense has been committed within ten days after his arrest,
and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to exercise the
jurisdiction reserved to it in paragraph 2 of this Article, the fiscal (prosecuting
attorney) of the city or province where the offense has been committed shall so
notify the officer holding the offender in custody within ten days after his arrest,
and in such a case the United States shall be free to exercise jurisdiction. If any
offense falling under paragraph 2 of this article is committed by any member of the
armed forces of the United States.
(a) While engaged in the actual performance of a specific military duty, or
(b) during a period of national emergency declared by either Government
and the fiscal (prosecuting attorney) so finds from the evidence, he shall
immediately notify the officer holding the offender in custody that the
United States is free to exercise jurisdiction. In the event the fiscal
(prosecuting attorney) finds that the offense was not committed in the
actual performance of a specific military duty, the offender's
commanding officer shall have the right to appeal from such finding to
the Secretary of Justice within ten days from the receipt of the decision
of the fiscal and the decision of the Secretary of Justice shall be final.
5. In all cases over which the Philippines exercises jurisdiction the custody of the
accused, pending trial and final judgment, shall be entrusted without delay to the
commanding officer of the nearest base, who shall acknowledge in writing that
such accused has been delivered to him for custody pending trial in a competent
court of the Philippines and that he will be held ready to appear and will be
produced before said court when required by it. The commanding officer shall be
furnished by the fiscal (prosecuting attorney) with a copy of the information
against the accused upon the filing of the original in the competent court.
 6. Notwithstanding the foregoing provisions, it is naturally agreed that in time of
war the United States shall have the right to exercise exclusive jurisdiction over any
offenses which may be committed by members of the armed forces of the United
States in the Philippines.
7. The United States agrees that it will not grant asylum in any of the bases to any
person fleeing from the lawful jurisdiction of the Philippines. Should such person be
found in any base, he will be surrendered on demand to the competent authorities
of the Philippines.
8. In every case in which jurisdiction over an offense is exercised by the United
States, the offended party may institute a separate civil action against the offender
in the proper court of the Philippines to enforce the civil liability which under the
laws of the Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction over the criminal
case against petitioner if the offense had been committed within a base. Under paragraph 1
(b), if the offense had been committed outside a base, still the General Court-Martial would
have jurisdiction if the offense had been committed by a "member of the armed forces of the
United States" there being no question that the offended party in this case is the United
States. It is not necessary therefore, to consider whether the offense is against "the security
of the United States" under paragraph 1 (c), or whether petitioner committed it in "the
actual performance of a specific military duty" or in time of a declared "national emergency"
under paragraph 4, or whether we are still in a state of war under paragraph 6, for in all
these instances the military jurisdiction depends also upon whether the offender is a
member of the armed forces of the United States. We shall then determine in this case (1)
whether the offense has been committed within or without a base, and, in the second
instance, (2) whether the offender is or is not a member of the armed forces of the United
States.
As to the first question, Article XXVI of the Agreement provides that "bases are those area
named in Annex A and Annex B and such additional areas as may be acquired for military
purposes pursuant to the terms of this Agreement." Among the areas specified in Annexes A
and B, there is none that has reference to the Port Area of Manila where the offense has
allegedly been committed. On the contrary, it appears in Annex A that "army
communications system" is included, but with "the deletion of all stations in the Port of
Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right to occupy
temporary quarters and installations now existing outside the bases mentioned in
Annex A and Annex B, for such reasonable time, not exceeding two years, as may
be necessary to develop adequate facilities within the bases for the United States
armed forces. If circumstances require an extension of time, such a period will be
fixed by mutual agreement of the two Governments; but such extension shall not
apply to the existing temporary quarters and installations within the limits of the
City of Manila and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the Port of Manila
reservation with boundaries as of 1941 will be available for use to the United States
armed forces until such time as other arrangements can be made for the supply of
the bases by mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be applicable to temporary
quarters and installations referred to in paragraph 1 of this article while they are so
occupied by the armed forces of the United States; provided, that offenses
committed within the temporary quarters and installations located within the
present limits of the City of Manila shall not be considered as offenses within the
bases but shall be governed by the provisions of Article XIII, paragraphs 2 and 4,
except that the election not to exercise the jurisdiction reserved to the Philippines
shall be made by the Secretary of Justice. It is agreed that the United States shall
have full use and full control of all these quarters and installations while they are
occupied by the armed forces of the United States, including the exercise of such
measures as may be necessary to police said quarters for the security of the
personnel and property therein.
The subject matter of this article, as indicated by its heading, is "Temporary Installations."
Paragraph 1 refers to temporary quarters and installations existing outside the bases
specified in Annex A and Annex B, which may be retained by the United States armed forces
for such reasonable time as may be necessary not exceeding two years in duration,
extendible fro not more than three years, the extension not being applicable to existing
temporary quarters and installations within the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which will be available
for use to the United States armed forces, also as a temporary quarters and installations, its
temporariness not being for a definite period of time, but "until such time as other
arrangements can be made for supply of the bases by mutual agreement of the two
Governments." There is in paragraph 2 absolutely nothing that may be construed as placing
the Port of Manila Reservation in the category of a permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the temporary quarters
and installations located within the present limits of the City of Manila shall not be
considered as offenses within the bases but shall be governed by the provisions of Article XIII,
paragraphs 2 and 4." Therefore, the offense at bar cannot be considered as committed
within, but without, a base, since it has been committed in the Port of Manila Area, which is
not one of the bases mentioned in Annexes A and B to the Agreement, and is merely
temporary quarters located within the present limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a member of the
armed forces of the United States under Article XIII, paragraph 1 (b). As above stated,
petitioner is a Filipino citizen and a civilian employee of the United States Army in the
Philippines. Under the terms of the Agreement, a civilian employee cannot be considered as
a member of the armed forces of the United States. Articles XI, XVI and XVIII of the
Agreement make mention of civilian employees separately from members of the armed
forces of the United States, which is a conclusive indication that under said Agreement
armed forces do not include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States, which enumerates,
among the persons subject to military law, persons accompanying or serving with the armies
of the United States. But this case should be decided not under the Articles of War, but under
the terms of the Base Agreement between the United States and the Philippines. And not
because a person is subject to military law under the Articles of War does he become, for
that reason alone, a member of the armed forces under the Base Agreement. And even
under the Articles of War, the mere fact that a civilian employee is in the service of the
United States Army does not make him a member of the armed forces of the United States.
Otherwise, it would have been necessary for said Article to enumerate civilian employees
separately from members of the armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the Secretary of Justice
had not notified the officer holding the petitioner in custody whether or not the Philippines
desired to retain jurisdiction under Article XXI, paragraph 3, of the Military Base Agreement.
It is sufficient to state in this connection that in cases like the present where the offender is a
civilian employee and not a member of the Unites States armed forces, no waiver can be
made either by the prosecuting attorney of by the Secretary of Justice, under paragraphs 2
and 4 of Article XIII in connection with paragraph 3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial appointed by
respondent has no jurisdiction to try petitioner for the offense allegedly committed by him
and, consequently, the judgment rendered by said court sentencing the petitioner to 15
years' imprisonment is null and void for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent without prejudice to any
criminal action which may be instituted in the proper court of the Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ, concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and punish offenses, criminal
and otherwise. The exercise of that power is, by virtue of express provision of our
Constitution, vested in the Supreme Court and in inferior courts established by law. (Sec. 1,
Art. VIII) The fundamental law refers to inferior courts created by an enactment of a national
legislature, Assembly or Congress, not to foreign courts martial, created by foreign countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the jurisdiction to try him
belongs to a justice of the peace or municipal court or to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that may be enacted to
said effect. The law, to be effective, must not violate the constitutional Bill of Rights, among
them the guarantee of fair trial in favor of an accused, the equal protection of the law, the
due process of law, the guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army, rendering services in
the Philippines. He attacks the power of the Commanding General, Philippine Ryukus
Command, U.S. Army, to have him under military custody and tried by a general court-
martial of said army. Respondent invokes, in opposing the petition, the provisions of the
agreement on military Bases entered into by the Republic of the Philippines and the
government of the United States of America on March 14, 1947.
The agreement appears to be a concession to two weaknesses: the American distrust in
Philippine tribunals and Filipino yielding to much distrust; on one hand, undisguised
prejudice, — national, racial, or otherwise, — on the other, meek submission to the natural
consequences of an unreasonable prejudice; on one side, the haughtiness of a powerful
nation, proud in the consciousness of its power, on the other, the moral surrender of a new
nation, not yet so sure in the exercise to their fullness of sovereign prerogatives. Extra-
territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional ground, it is hardly
defensible.
The Bill of Rights has been embodied in the Constitution for the protection of all human
beings within the territorial jurisdiction of the Philippines. All persons covered by the waivers
made in the agreement, whether Americans or Filipinos, whether citizens or aliens, are
denied the constitutional guarantee of the equal protection of the law. Their fundamental
rights are safeguarded by the Constitution, and the agreement places them outside the
Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it stipulates waiver of
the jurisdiction of our courts of justice on the class of persons mentioned therein, is null and
void, being in open conflict with clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and by the court
martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the agreement are valid, we
concur in the reasoning of the Chief Justice in support of the position that petitioner is not
comprehended in said waiver clauses. With more reason, respondent has no power nor
jurisdiction to hold petitioner in confinement, nor to have him tried by a U.S. army court-
martial.

Notice must be served to the whole world that, in rendering the decision in this case, the
Supreme Court, in the fullness of judicial maturity, acted not as a mere agency of national
sovereignty, but in the consciousness that the administration of justice, more than national,
is a human function, untethered by the narrow provincialism of the points of view of a
country, but founded on the universal and permanent interests of mankind, as expressed in
principles with equal value regardless of the hemisphere of the latitude where a person may
be placed.

There is a suggestion that, because it has not found articulate expression in this case, it
should be ignored, when it is boiling in many minds, and it is that respondent, shielded by his
military power and the overwhelming national power of his country, may ignore our decision,
and we will be powerless to enforce it. The fact that respondent appeared before us, through
counsel, without any reservation, answers the suggestion, and gives full justice to the sense
of moral values of the respondent.

Besides, in the present state of international affairs, when America is engaged in the noble
task of making a reality the ideal of one world, it can not compromise its moral leadership by
any showing of reckless disregard to the decision of a court of justice. The cry that there must
be one world or none can receive but one satisfactory answer; the reality of world justice.
Only in justice hinges the salvation of humanity. Only justice can give real peace and provide
the basis for contentment and happiness.

We concur in the decision, ordering the immediate release of the petitioner.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5270 January 15, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1 of Act
No. 55, as amended by section 1 of Act No. 275, and from the judgment entered thereon
appealed to this court, where under proper assignments of error he contends: (1) that the
complaint does not state facts sufficient to confer jurisdiction upon the court; (2) that under
the evidence the trial court was without jurisdiction to hear and determine the case; (3) that
Act No. 55 as amended is in violation of certain provisions of the Constitution of the United
States, and void as applied to the facts of this case; and (4) that the evidence is insufficient to
support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the said H. N.
Bull was then and there master of a steam sailing vessel known as the steamship
Standard, which vessel was then and there engaged in carrying and transporting
cattle, carabaos, and other animals from a foreign port and city of Manila,
Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as
aforesaid, on or about the 2d day of December, 1908, did then and there willfully,
unlawfully, and wrongly carry, transport, and bring into the port and city of Manila,
aboard said vessel, from the port of Ampieng, Formosa, six hundred and seventy-
seven (677) head of cattle and carabaos, without providing suitable means for
securing said animals while in transit, so as to avoid cruelty and unnecessary
suffering to the said animals, in this, to wit, that the said H. N. Bull, master, as
aforesaid, did then and there fail to provide stalls for said animals so in transit and
suitable means for trying and securing said animals in a proper manner, and did
then and there cause some of said animals to be tied by means of rings passed
through their noses, and allow and permit others to be transported loose in the
hold and on the deck of said vessel without being tied or secured in stalls, and all
without bedding; that by reason of the aforesaid neglect and failure of the accused
to provide suitable means for securing said animals while so in transit, the noses of
some of said animals were cruelly torn, and many of said animals were tossed
about upon the decks and hold of said vessel, and cruelly wounded, bruised, and
killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine
Commission.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals, from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall
carry with them, upon the vessels carrying such animals, sufficient forage and fresh
water to provide for the suitable sustenance of such animals during the ordinary
period occupied by the vessel in passage from the port of shipment to the port of
debarkation, and shall cause such animals to be provided with adequate forage and
fresh water at least once in every twenty-four hours from the time that the animals
are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1
thereof the following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting
cattle, sheep, swine, or other animals from one port in the Philippine Islands to
another, or from any foreign port to any port within the Philippine Islands, shall
provide suitable means for securing such animals while in transit so as to avoid all
cruelty and unnecessary suffering to the animals, and suitable and proper facilities
for loading and unloading cattle or other animals upon or from vessels upon which
they are transported, without cruelty or unnecessary suffering. It is hereby made
unlawful to load or unload cattle upon or from vessels by swinging them over the
side by means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who knowingly and
willfully fails to comply with the provisions of section one, shall, for every such
failure, be liable to pay a penalty of not less that one hundred dollars nor more that
five hundred dollars, United States money, for each offense. Prosecution under this
Act may be instituted in any Court of First Instance or any provost court organized
in the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court
was sitting at a port where the cattle were disembarked, or that the offense was committed
on board a vessel registered and licensed under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or
any provost court organized in the province or port in which such animals are disembarked,
and there is nothing inconsistent therewith in Act No. 136, which provides generally for the
organization of the courts of the Philippine Islands. Act No. 400 merely extends the general
jurisdiction of the courts over certain offenses committed on the high seas, or beyond the
jurisdiction of any country, or within any of the waters of the Philippine Islands on board a
ship or water craft of any kind registered or licensed in the Philippine Islands, in accordance
with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised
by the Court of First Instance in any province into which such ship or water upon which the
offense or crime was committed shall come after the commission thereof. Had this offense
been committed upon a ship carrying a Philippine registry, there could have been no doubt
of the Jurisdiction of the court, because it is expressly conferred, and the Act is in accordance
with well recognized and established public law. But the Standard was a Norwegian vessel,
and it is conceded that it was not registered or licensed in the Philippine Islands under the
laws thereof. We have then the question whether the court had jurisdiction over an offense
of this character, committed on board a foreign ship by the master thereof, when the neglect
and omission which constitutes the offense continued during the time the ship was within
the territorial waters of the United States. No court of the Philippine Islands had jurisdiction
over an offenses or crime committed on the high seas or within the territorial waters of any
other country, but when she came within 3 miles of a line drawn from the headlines which
embrace the entrance to Manila Bay, she was within territorial waters, and a new set of
principles became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le
Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject through the proper political
agency. This offense was committed within territorial waters. From the line which
determines these waters the Standard must have traveled at least 25 miles before she came
to anchor. During that part of her voyage the violation of the statue continued, and as far as
the jurisdiction of the court is concerned, it is immaterial that the same conditions may have
existed while the vessel was on the high seas. The offense, assuming that it originated at the
port of departure in Formosa, was a continuing one, and every element necessary to
constitute it existed during the voyage across the territorial waters. The completed forbidden
act was done within American waters, and the court therefore had jurisdiction over the
subject-matter of the offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the
objection to the jurisdiction raises the further question whether that jurisdiction is restricted
by the fact of the nationality of the ship. Every. Every state has complete control and
jurisdiction over its territorial waters. According to strict legal right, even public vessels may
not enter the ports of a friendly power without permission, but it is now conceded that in the
absence of a prohibition such ports are considered as open to the public ship of all friendly
powers. The exemption of such vessels from local jurisdiction while within such waters was
not established until within comparatively recent times. In 1794, Attorney-General Bradford,
and in 1796 Attorney-General Lee, rendered opinions to the effect that "the laws of nations
invest the commander of a foreign ship of war with no exemption from the jurisdiction of the
country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also
supported by Lord Stowell in an opinion given by him to the British Government as late as
1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144),
Chief Justice Marshall said that the implied license under which such vessels enter a friendly
port may reasonably be construed as "containing exemption from the jurisdiction of the
sovereign within whose territory she claims the rights of hospitality." The principle was
accepted by the Geneva Arbitration Tribunal, which announced that "the priviledge of
exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an
absolute right, but solely as a proceeding founded on the principle of courtesy and mutual
deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely. Local
official exercise but little control over their actions, and offenses committed by their crew are
justiciable by their own officers acting under the laws to which they primarily owe allegiance.
This limitation upon the general principle of territorial sovereignty is based entirely upon
comity and convenience, and finds its justification in the fact that experience shows that such
vessels are generally careful to respect local laws and regulation which are essential to the
health, order, and well-being of the port. But comity and convenience does not require the
extension of the same degree of exemption to merchant vessels. There are two well-defined
theories as to extent of the immunities ordinarily granted to them, According to the French
theory and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the
country to which the vessel belongs. The French courts therefore claim exclusive jurisdiction
over crimes committed on board French merchant vessels in foreign ports by one member of
the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le
Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome
2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right,
although she has frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1,
231; British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a fact
instead of a theory have sought to restrict local jurisdiction, but Hall, who is doubtless the
leading English authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of merchant
vessels that so soon as the latter enter the ports of a foreign state they become
subject to the local jurisdiction on all points in which the interests of the country
are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters a
foreign port it is subject to the jurisdiction of the local authorities, unless the local
sovereignty has by act of acquiescence or through treaty arrangements consented to waive a
portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204;
article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case
of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would be obviously in
convinient and dangerous to society and would subject the laws to continual
infraction and the government to degradation if such individual merchants did not
owe temporary and local allegiance, and were not amendable to the jurisdiction of
the country.
The Supreme Court of the United States has recently said that the merchant vessels of one
country visiting the ports of another for the purpose of trade, subject themselves to the laws
which govern the ports they visit, so long as they remain; and this as well in war as in peace,
unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the
treaty of commerce and navigation between Sweden and Norway and the United States, of
July 4, 1827, which concedes to the consul, vice-consuls, or consular agents of each country
"The right to sit as judges and arbitrators in such differences as may arise between the
captains and crews of the vessels belonging to the nation whose interests are committed to
their charge, without the interference of the local authorities, unless the conduct of the
crews or of the captains should disturb the order or tranquillity of the country." (Comp. of
Treaties in Force, 1904, p. 754.) This exception applies to controversies between the
members of the ship's company, and particularly to disputes regarding wages. (2 Moore, Int.
Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the
country are affected by many events which do not amount to a riot or general public
disturbance. Thus an assault by one member of the crew upon another, committed upon the
ship, of which the public may have no knowledge whatever, is not by this treaty withdrawn
from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on
board the vessel in the port of Galveston, Texas. They were prosecuted before a justice of
the peace, but the United States district attorney was instructed by the Government to take
the necessary steps to have the proceedings dismissed, and the aid of the governor of Texas
was invoked with the view to "guard against a repetition of similar proceedings." (Mr. Fish,
Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876; Moore, Int.
Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount to a breach
of the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark Livingston
was prosecuted in the courts of Philadelphia County for an assault and battery committed on
board the ship while lying in the port of Philadelphia, it was held that there was nothing in
the treaty which deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14
Phila. (Pa.), 363.) Representations were made through diplomatic channels to the State
Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to Count
Lewenhaupt, the Swedish and Norwegian minister, as follows:
I have the honor to state that I have given the matter careful consideration in
connection with the views and suggestion of your note and the provisions of the
thirteenth article of the treaty of 1827 between the United States and Sweden and
Norway. The stipulations contained in the last clause of that article . . . are those
under which it is contended by you that jurisdiction is conferred on the consular
officers, not only in regard to such differences of a civil nature growing out of the
contract of engagement of the seamen, but also as to disposing of controversies
resulting from personal violence involving offense for which the party may be held
amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad
interpretation. The jurisdiction conferred upon the consuls is conceived to be
limited to their right to sit as judges or abitrators in such differences as may arise
between captains and crews of the vessels, where such differences do not involve
on the part of the captain or crew a disturbance of the order or tranquillity of the
country. When, however, a complaint is made to a local magistrate, either by the
captain or one or more of the crew of the vessel, involving the disturbance of the
order or tranquillity of the country, it is competent for such magistrate to take
cognizance of the matter in furtherance of the local laws, and under such
circumstances in the United States it becomes a public duty which the judge or
magistrate is not at liberty voluntarily to forego. In all such cases it must necessarily
be left to the local judicial authorities whether the procedure shall take place in the
United States or in Sweden to determine if in fact there had been such disturbance
of the local order and tranquillity, and if the complaint is supported by such proof
as results in the conviction of the party accused, to visit upon the offenders such
punishment as may be defined against the offense by the municipal law of the
place." (Moore, Int. Law Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses
committed on board a merchant vessel by one member of the crew against another which
amount to a disturbance of the order or tranquillity of the country, and a fair and reasonable
construction of the language requires un to hold that any violation of criminal laws disturbs
the order or traquillity of the country. The offense with which the appellant is charged had
nothing to so with any difference between the captain and the crew. It was a violation by the
master of the criminal law of the country into whose port he came. We thus find that neither
by reason of the nationality of the vessel, the place of the commission of the offense, or the
prohibitions of any treaty or general principle of public law, are the court of the Philippine
Islands deprived of jurisdiction over the offense charged in the information in this case.
It is further contended that the complaint is defective because it does not allege that the
animals were disembarked at the port of Manila, an allegation which it is claimed is essential
to the jurisdiction of the court sitting at that port. To hold with the appellant upon this issue
would be to construe the language of the complaint very strictly against the Government.
The disembarkation of the animals is not necessary in order to constitute the completed
offense, and a reasonable construction of the language of the statute confers jurisdiction
upon the court sitting at the port into which the animals are bought. They are then within the
territorial jurisdiction of the court, and the mere fact of their disembarkation is immaterial so
far as jurisdiction is concerned. This might be different if the disembarkation of the animals
constituted a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering. The allegation of the
complaint that the act was committed willfully includes the allegation that it was committed
knowingly. As said in Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word
'willfully' carries the idea, when used in connection with an act forbidden by law, that the act
must be done knowingly or intentionally; that, with knowledge, the will consented to,
designed, and directed the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was said:
"The first one is that the complaint did not show, in the words of the ordinance, that the
appellant 'knowingly' did the act complained of. This point, I think, was fully answered by the
respondent's counsel — that the words 'willfully' and 'knowingly' conveyed the same
meaning. To 'willfully' do an act implies that it was done by design — done for a certain
purpose; and I think that it would necessarily follow that it was 'knowingly' done." To the
same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the
present case.
The evidence shows not only that the defendant's acts were knowingly done, but his defense
rests upon the assertion that "according to his experience, the system of carrying cattle loose
upon the decks and in the hold is preferable and more secure to the life and comfort of the
animals." It was conclusively proven that what was done was done knowingly and
intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only
necessary to state the act or omission complained of as constituting a crime or public offense
in ordinary and concise language, without repitition. It need not necessarily be in the words of
the statute, but it must be in such form as to enable a person of common understanding to
know what is intended and the court to pronounce judgment according to right. A complaint
which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to
"provide suitable means for securing such animals while in transit, so as to avoid all cruelty
and unnecessary suffering to the animals." The allegation of the complaint as it reads in
English is that the defendant willfully, unlawfully, and wrongfully carried the cattle "without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect
and failure of the accused to provide suitable means for securing said animals were cruelty
torn, and many of said animals were tossed about upon the decks and hold of said vessels,
and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the information does not
charge him with failure to provide "sufficient" and "adequate" means. The words used are
"medios suficientes" and "medios adecuados." In view of the fact that the original complaint
was prepared in English, and that the word "suitable" is translatable by the words
"adecuado," "suficiente," and "conveniente," according to the context and circumstances, we
determine this point against the appellant, particularly in view of the fact that the objection
was not made in the court below, and that the evidence clearly shows a failure to provide
"suitable means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment
thereto seems to rest upon a fundamentally erroneous conception of the constitutional law
of these Islands. The statute penalizes acts and ommissions incidental to the transportation
of live stock between foreign ports and ports of the Philippine Islands, and had a similar
statute regulating commerce with its ports been enacted by the legislature of one of the
States of the Union, it would doubtless have been in violation of Article I, section 3, of the
Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The
importance of the question thus presented requires a statement of the principles which
govern those relations, and consideration of the nature and extent of the legislative power of
the Philippine Commission and the Legislature of the Philippines. After much discussion and
considerable diversity of opinion certain applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to make war and
treaties, and it has the power possessed by all nations to acquire territory by conquest or
treaty. Territory thus acquired belongs to the United States, and to guard against the
possibility of the power of Congress to provide for its government being questioned, the
framers of the Constitution provided in express terms that Congress should have the power
"to dispose of and make all needful rules and regulations respecting territory and other
property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the
territory by the United States, and until it is formally incorporated into the Union, the duty of
providing a government therefor devolves upon Congress. It may govern the territory by its
direct acts, or it may create a local government, and delegate thereto the ordinary powers
required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the
Union, and for newly acquired territory not yet incorporated therein. It has been customary
to organize a government with the ordinary separation of powers into executive, legislative,
and judicial, and to prescribe in an organic act certain general conditions in accordance with
which the local government should act. The organic act thus became the constitution of the
government of the territory which had not been formally incorporated into the Union, and
the validity of legislation enacted by the local legislature was determined by its conformity
with the requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.)
To the legislative body of the local government Congress has delegated that portion of
legislative power which in its wisdom it deemed necessary for the government of the
territory, reserving, however, the right to annul the action of the local legislature and itself
legislate directly for the territory. This power has been exercised during the entire period of
the history of the United States. The right of Congress to delegate such legislative power can
no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S.,
370, 385.)
The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory
tended to create an impression upon the minds of many people that it went there by its own
force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the
power of Congress is limited only by those prohibitions of the Constitution which go to the
very root of its power to act at all, irrespective of time or place. In all other respects it is
plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs.
Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the United
States, and legislation founded on the theory was enacted long prior to the acquisition of the
present Insular possessions. Section 1891 of the Revised Statutes of 1878 provides that "The
Constitution and all laws of the United States which are not locally inapplicable shall have the
same force and effect within all the organized territories, and in every Territory hereafter
organized, as elsewhere within the United States." When Congress organized a civil
government for the Philippines, it expressly provided that this section of the Revised Statutes
should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as a
result of the war with Spain, the executive and legislative authorities have consistently
proceeded in conformity with the principles above state. The city of Manila was surrendered
to the United States on August 13, 1898, and the military commander was directed to hold
the city, bay, and harbor, pending the conclusion of a peace which should determine the
control, disposition, and government of the Islands. The duty then devolved upon the
American authorities to preserve peace and protect person and property within the occupied
territory. Provision therefor was made by proper orders, and on August 26 General Merritt
assumed the duties of military governor. The treaty of peace was signed December 10, 1898.
On the 22d of December, 1898, the President announced that the destruction of the Spanish
fleet and the surrender of the city had practically effected the conquest of the Philippine
Islands and the suspension of the Spanish sovereignty therein, and that by the treaty of
peace the future control, disposition, and government of the Islands had been ceded to the
United States. During the periods of strict military occupation, before the treaty of peace was
ratified, and the interim thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S.,
260), the territory was governed under the military authority of the President as commander
in chief. Long before Congress took any action, the President organized a civil government
which, however, had its legal justification, like the purely military government which it
gradually superseded, in the war power. The military power of the President embraced
legislative, executive personally, or through such military or civil agents as he chose to select.
As stated by Secretary Root in his report for 1901 —
The military power in exercise in a territory under military occupation includes
executive, legislative, and judicial authority. It not infrequently happens that in a
single order of a military commander can be found the exercise of all three of these
different powers — the exercise of the legislative powers by provisions prescribing
a rule of action; of judicial power by determination of right; and the executive
power by the enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as
conditions would permit. After full investigation, the organization of civil government was
initiated by the appointment of a commission to which civil authority was to be gradually
transferred. On September 1, 1900, the authority to exercise, subject to the approval of the
President. "that part of the military power of the President in the Philippine Islands which is
legislative in its character" was transferred from the military government to the Commission,
to be exercised under such rules and regulations as should be prescribed by the Secretary of
War, until such time as complete civil government should be established, or congress
otherwise provided. The legislative power thus conferred upon the Commission was declared
to include "the making of rules and orders having the effect of law for the raising of revenue
by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of
the Islands; the establishment of an educational system to secure an efficient civil service;
the organization and establishment of courts; the organization and establishment of
municipal and departmental government, and all other matters of a civil nature which the
military governor is now competent to provide by rules or orders of a legislative character."
This grant of legislative power to the Commission was to be exercised in conformity with
certain declared general principles, and subject to certain specific restrictions for the
protection of individual rights. The Commission were to bear in mind that the government to
be instituted was "not for our satisfaction or for the expression of our theoretical views, but
for the happiness, peace, and prosperity of the people of the Philippine Island, and the
measures adopted should be made to conforms to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government." The specific restrictions upon legislative power
were found in the declarations that "no person shall be deprived of life, liberty, or property
without due process of law; that private property shall not be taken for public use without
just compensation; that in all criminal prosecutions the accused shall enjoy the right to a
speedy and public trial, to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense; that excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted; that no person shall be put twice in jeopardy for the same offense or be compelled
in any criminal case to be a witness against himself; that the right to be secure against
unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary
servitude shall exist except as a punishment for crime; that no bill of attainder or ex post
facto law shall be passed; that no law shall be passed abridging the freedom of speech or of
the press or of the rights of the people to peaceably assemble and petition the Government
for a redress of grievances; that no law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious
profession and worship without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military,
civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise
provided by Congress be vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority,
which had been exercised previously by the military governor, was transferred to that
official. The government thus created by virtue of the authority of the President as
Commander in Chief of the Army and Navy continued to administer the affairs of the Islands
under the direction of the President until by the Act of July 1, 1902, Congress assumed
control of the situation by the enactment of a law which, in connection with the instructions
of April 7, 1900, constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and approved
the action of the President in organizing the government. Substantially all the limitations
which had been imposed on the legislative power by the President's instructions were
included in the law, Congress thus extending to the Islands by legislative act nor the
Constitution, but all its provisions for the protection of the rights and privileges of individuals
which were appropriate under the conditions. The action of the President in creating the
Commission with designated powers of government, in creating the office of the Governor-
General and Vice-Governor-General, and through the Commission establishing certain
executive departments, was expressly approved and ratified. Subsequently the action of the
President in imposing a tariff before and after the ratification of the treaty of peace was also
ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902; U.S. vs.
Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by law the
Islands were to continue to be governed "as thereby and herein provided." In the future the
enacting clause of all statutes should read "By authority of the United States" instead of "By
the authority of the President." In the course of time the legislative authority of the
Commission in all parts of the Islands not inhabited by Moros or non-Christian tribes was to
be transferred to a legislature consisting of two houses — the Philippine Commission and the
Philippine Assembly. The government of the Islands was thus assumed by Congress under its
power to govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional
relation which unites the States and Territories into the Union. The authority for its creation
and maintenance is derived from the Constitution of the United States, which, however,
operates on the President and Congress, and not directly on the Philippine Government. It is
the creation of the United States, acting through the President and Congress, both deriving
power from the same source, but from different parts thereof. For its powers and the
limitations thereon the Government of the Philippines looked to the orders of the President
before Congress acted and the Acts of Congress after it assumed control. Its organic laws are
derived from the formally and legally expressed will of the President and Congress, instead of
the popular sovereign constituency which lies upon any subject relating to the Philippines is
primarily in Congress, and when it exercise such power its act is from the viewpoint of the
Philippines the legal equivalent of an amendment of a constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments exercising the
functions commonly assigned to such departments. The separation of powers is as complete
as in most governments. In neither Federal nor State governments is this separation such as
is implied in the abstract statement of the doctrine. For instance, in the Federal Government
the Senate exercises executive powers, and the President to some extent controls legislation
through the veto power. In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department in the Philippine
Government, is a member of the Philippine Commission, but as executive he has no veto
power. The President and Congress framed the government on the model with which
Americans are familiar, and which has proven best adapted for the advancement of the
public interests and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general
constitutional doctrined which are inherent in the system. Hence, under it the Legislature
must enact laws subject to the limitations of the organic laws, as Congress must act under
the national Constitution, and the States under the national and state constitutions. The
executive must execute such laws as are constitutionally enacted. The judiciary, as in all
governments operating under written constitutions, must determine the validity of legislative
enactments, as well as the legality of all private and official acts. In performing these
functions it acts with the same independence as the Federal and State judiciaries in the
United States. Under no other constitutional theory could there be that government of laws
and not of men which is essential for the protection of rights under a free and orderly
government.
Such being the constitutional theory of the Government of the Philippine Islands, it is
apparent that the courts must consider the question of the validity of an act of the Philippine
Commission or the Philippine Legislature, as a State court considers an act of the State
legislature. The Federal Government exercises such powers only as are expressly or impliedly
granted to it by the Constitution of the United States, while the States exercise all powers
which have not been granted to the central government. The former operates under grants,
the latter subject to restrictions. The validity of an Act of Congress depends upon whether
the Constitution of the United States contains a grant of express or implied authority to enact
it. An act of a State legislature is valid unless the Federal or State constitution expressly or
impliedly prohibits its enaction. An Act of the legislative authority of the Philippines
Government which has not been expressly disapproved by Congress is valid unless its
subject-matter has been covered by congressional legislation, or its enactment forbidden by
some provision of the organic laws.
The legislative power of the Government of the Philippines is granted in general terms
subject to specific limitations. The general grant is not alone of power to legislate on certain
subjects, but to exercise the legislative power subject to the restrictions stated. It is true that
specific authority is conferred upon the Philippine Government relative to certain subjects of
legislation, and that Congress has itself legislated upon certain other subjects. These,
however, should be viewed simply as enactments on matters wherein Congress was fully
informed and ready to act, and not as implying any restriction upon the local legislative
authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the
Government of the Philippine tends strongly to confirm the view that for purposes of
construction the Government of the Philippines should be regarded as one of general instead
of enumerated legislative powers. The situation was unusual. The new government was to
operate far from the source of its authority. To relieve Congress from the necessity of
legislating with reference to details, it was thought better to grant general legislative power
to the new government, subject to broad and easily understood prohibitions, and reserve to
Congress the power to annul its acts if they met with disapproval. It was therefore provided
"that all laws passed by the Government of the Philippine Islands shall be reported to
Congress, which hereby reserves the power and authority to annul the same." (Act of
Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature of
the Philippines until approved by Congress, or when approved, expressly or by acquiescence,
make them the laws of Congress. They are valid acts of the Government of the Philippine
Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the
Legislature has been expressly or implication forbidden to enact it. Section 3, Article IV, of
the Constitution of the United States operated only upon the States of the Union. It has no
application to the Government of the Philippine Islands. The power to regulate foreign
commerce is vested in Congress, and by virtue of its power to govern the territory belonging
to the United States, it may regulate foreign commerce with such territory. It may do this
directly, or indirectly through a legislative body created by it, to which its power in this
respect if delegate. Congress has by direct legislation determined the duties which shall be
paid upon goods imported into the Philippines, and it has expressly authorized the
Government of the Philippines to provide for the needs of commerce by improving harbors
and navigable waters. A few other specific provisions relating to foreign commerce may be
found in the Acts of Congress, but its general regulation is left to the Government of the
Philippines, subject to the reserved power of Congress to annul such legislation as does not
meet with its approval. The express limitations upon the power of the Commission and
Legislature to legislate do not affect the authority with respect to the regulation of
commerce with foreign countries. Act No. 55 was enacted before Congress took over the
control of the Islands, and this act was amended by Act No. 275 after the Spooner
amendment of March 2, 1901, was passed. The military government, and the civil
government instituted by the President, had the power, whether it be called legislative or
administrative, to regulate commerce between foreign nations and the ports of the territory.
(Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This
Act has remained in force since its enactment without annulment or other action by
Congress, and must be presumed to have met with its approval. We are therefore satisfied
that the Commission had, and the Legislature now has, full constitutional power to enact
laws for the regulation of commerce between foreign countries and the ports of the
Philippine Islands, and that Act No. 55, as amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the Act can
not be left to the judgment of the master of the ship. It is a question which must be
determined by the court from the evidence. On December 2, 1908, the defendant Bull
brought into and disembarked in the port and city of Manila certain cattle, which came from
the port of Ampieng, Formosa, without providing suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to
the provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial
court found the following facts, all of which are fully sustained by the evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian steamer
known as the Standard, for a period of six months or thereabouts prior to the 2d
day of December, 1908, was engaged in the transportation of cattle and carabaos
from Chines and Japanese ports to and into the city of Manila, Philippine Islands.
That a suitable and practicable manner in which to transport cattle abroad
steamship coming into Manila Bay and unloading in the city of Manila is by way of
individual stalls for such cattle, providing partitions between the cattle and
supports at the front sides, and rear thereof, and cross-cleats upon the floor on
which they stand and are transported, of that in case of storms, which are common
in this community at sea, such cattle may be able to stand without slipping and
pitching and falling, individually or collectively, and to avoid the production of
panics and hazard to the animals on account or cattle were transported in this
case. Captain Summerville of the steamship Taming, a very intelligent and
experienced seaman, has testified, as a witness in behalf of the Government, and
stated positively that since the introduction in the ships with which he is
acquainted of the stall system for the transportation of animals and cattle he has
suffered no loss whatever during the last year. The defendant has testified, as a
witness in his own behalf, that according to his experience the system of carrying
cattle loose upon the decks and in the hold is preferable and more secure to the
life and comfort of the animals, but this theory of the case is not maintainable,
either by the proofs or common reason. It can not be urged with logic that, for
instance, three hundred cattle supports for the feet and without stalls or any other
protection for them individually can safely and suitably carried in times of storm
upon the decks and in the holds of ships; such a theory is against the law of nature.
One animal falling or pitching, if he is untied or unprotected, might produce a
serious panic and the wounding of half the animals upon the ship if transported in
the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos,
with subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and
judgment is affirmed. So ordered.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

That on the 2d day of December, 1908, the defendant, as such master and captain
as aforesaid, brought into the city of Manila, aboard said ship, a large number of
cattle, which ship was anchored, under the directions of the said defendant, behind
the breakwaters in front of the city of Manila, in Manila Bay, and within the
jurisdiction of this court; and that fifteen of said cattle then and there had broken
legs and three others of said cattle were dead, having broken legs; and also that
said cattle were transported and carried upon said ship as aforesaid by the
defendant, upon the deck and in the hold of said ship, without suitable precaution
and care for the transportation of said animals, and to avoid danger and risk to
their lives and security; and further that said cattle were so transported abroad
said ship by the defendant and brought into the said bay, and into the city of
Manila, without any provisions being made whatever upon said decks of said ship
and in the hold thereof to maintain said cattle in a suitable condition and position
for such transportation.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated
that he "carried, kept, possessed and had in his possession and control, 96 kilogrammes of
opium," and that "he had been surprised in the act of selling 1,000 pesos worth prepared
opium."
The defense presented a demurrer based on two grounds, the second of which was the more
than one crime was charged in the complaint. The demurrer was sustained, as the court
found that the complaint contained two charges, one, for the unlawful possession of opium,
and the other, for the unlawful sale of opium, and, consequence of that ruling, it ordered
that the fiscal should separated one charge from the other and file a complaint for each
violation; this, the fiscal did, and this cause concerns only the unlawful possession of opium.
It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the
general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present
month (stated as August 19, 1909), several persons, among them Messrs. Jacks and
Milliron, chief of the department of the port of Cebu and internal-revenue agent of
Cebu, respectively, went abroad the steamship Erroll to inspect and search its
cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and
afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A
contained 49 cans of opium, and the other, Exhibit B, the larger sack, also
contained several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's control, who
moreover, freely and of his own will and accord admitted that this sack, as well as
the other referred to in Exhibit B and found in the cabin, belonged to him. The said
defendant also stated, freely and voluntarily, that he had bought these sacks of
opium, in Hongkong with the intention of selling them as contraband in Mexico or
Vera Cruz, and that, as his hold had already been searched several times for opium,
he ordered two other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B,
properly constitute the corpus delicti. Moreover, another lot of four cans of opium, marked,
as Exhibit C, was the subject matter of investigation at the trial, and with respect to which
the chief of the department of the port of Cebu testified that they were found in the part of
the ship where the firemen habitually sleep, and that they were delivered to the first officer
of the ship to be returned to the said firemen after the vessel should have left the
Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he
had from the Manila custom-house, were permitted to retain certain amounts of opium,
always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as
evidence in this cause. With regard to this the internal-revenue agent testified as follows:itc-
alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a secret-
service agent and taken to the office of the governor to prove that the accused had
opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken out "because it
refers to a sale." But, with respect to this answer, the chief of the department of customs had
already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a party
brought him a sample of opium and that the same party knew that there was more
opium on board the steamer, and the agent asked that the vessel be searched.
The defense moved that this testimony be rejected, on the ground of its being hearsay
evidence, and the court only ordered that the part thereof "that there was more opium, on
board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits
A, B, and C, contained opium and were found on board the steamship Erroll, a vessel of
English nationality, and that it was true that the defendant stated that these sacks of opium
were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant stated to him, in
the presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not
needed, because the defendant spoke English), the warden of the jail, and four guards, that Therefore, reducing the imprisonment and the fine imposed to six months and P1,000,
the opium seized in the vessel had been bought by him in Hongkong, at three pesos for each respectively, we affirm in all other respects the judgment appealed from, with the costs of
round can and five pesos for each one of the others, for the purpose of selling it, as this instance against the appellant. So ordered.
contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu,
and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
a contract to sell an amount of the value of about P500; that the opium found in the room of
the other two Chinamen prosecuted in another cause, was his, and that he had left it in their
stateroom to avoid its being found in his room, which had already been searched many
times; and that, according to the defendant, the contents of the large sack was 80 cans of
opium, and of the small one, 49, and the total number, 129.

It was established that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no
jurisdiction to try the same and the facts concerned therein did not constitute a crime. The
fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be
imposed upon the defendant, in view of the considerable amount of opium seized. The court
ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its
district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000,
with additional subsidiary imprisonment in case of insolvency, though not to exceed one
third of the principal penalty, and to the payment of the costs. It further ordered the
confiscation, in favor of the Insular Government, of the exhibits presented in the case, and
that, in the event of an appeal being taken or a bond given, or when the sentenced should
have been served, the defendant be not released from custody, but turned over to the
customs authorities for the purpose of the fulfillment of the existing laws on immigration.

From this judgment, the defendant appealed to this court.lawphi1.net

The appeal having been heard, together with the allegations made therein by the parties, it is
found: That, although the mere possession of a thing of prohibited use in these Islands,
aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute
a crime triable by the courts of this country, on account of such vessel being considered as an
extension of its own nationality, the same rule does not apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium, is landed from
the vessel upon Philippine soil, thus committing an open violation of the laws of the land,
with respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in that said place itself had competent
jurisdiction, in the absence of an agreement under an international treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject matter
of the present case, was considerable, it does not appear that, on such account, the two
penalties fixed by the law on the subject, should be imposed in the maximum degree.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant
guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two
years imprisonment, to pay a fine of P300 or to suffer subsidiary imprisonment in case of
insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China employed as a
fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at
the port of Cebu on April 25, 1917, after a voyage direct from the port of Saigon. The
defendant bought eight cans of opium in Saigon, brought them on board the steamship Shun
Chang, and had them in his possession during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search
found the eight cans of opium above mentioned hidden in the ashes below the boiler of the
steamer's engine. The defendant confessed that he was the owner of this opium, and that he
had purchased it in Saigon. He did not confess, however, as to his purpose in buying the
opium. He did not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that the intention of the
accused was to import illegally this opium into the Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands been proven?
Two decisions of this Court are cited in the judgment of the trial court, but with the
intimation that there exists inconsistently between the doctrines laid down in the two cases.
However, neither decision is directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down
by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in these Islands,
aboard a foreign vessel in transit, in any of their ports, does not, as a general rule,
constitute a crime triable by the courts of this country, on account of such vessel
being considered as an extension of its own nationality, the same rule does no
apply when the article, whose use is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel upon Philippine soil, thus
committing an open violation of the laws of the land, with respect to which, as it is
a violation of the penal law in force at the place of the commission of the crime,
only the court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the present
instance is readily observable. In the Look Chaw case, the charge case the illegal possession
and sale of opium — in the present case the charge as illegal importation of opium; in the
Look Chaw case the foreign vessel was in transit — in the present case the foreign vessel was
not in transit; in the Look Chaw case the opium was landed from the vessel upon Philippine
soil — in the present case of United States vs. Jose ([1916], 34 Phil., 840), the main point, and
the one on which resolution turned, was that in a prosecution based on the illegal
importation of opium or other prohibited drug, the Government must prove, or offer
evidence sufficient to raise a presumption, that the vessel from which the drug is discharged
came into Philippine waters from a foreign country with the drug on board. In the Jose case,
the defendants were acquitted because it was not proved that the opium was imported from
a foreign country; in the present case there is no question but what the opium came from
Saigon to Cebu. However, in the opinion in the Jose case, we find the following which may be
obiter dicta, but which at least is interesting as showing the view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it anchored
in Subic Bay. It was not necessary that the opium discharged or that it be taken
from the ship. It was sufficient that the opium was brought into the waters of the
Philippine Islands on a boat destined for a Philippine port and which subsequently
anchored in a port of the Philippine Islands with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just quoted, we return to
an examination of the applicable provisions of the law. It is to be noted that section 4 of Act
No. 2381 begins, "Any person who shall unlawfully import or bring any prohibited drug into
the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of
the United States have held that the mere act of going into a port, without breaking bulk, is
prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the
importation is not the making entry of goods at the custom house, but merely the bringing
them into port; and the importation is complete before entry of the Custom House. (U. S. vs.
Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the
Opium Law, we expressly hold that any person unlawfully imports or brings any prohibited
drug into the Philippine Islands, when the prohibited drug is found under this person's
control on a vessel which has come direct from a foreign country and is within the
jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal
importation of the drug unless contrary circumstances exist or the defense proves otherwise.
Applied to the facts herein, it would be absurb to think that the accused was merely carrying
opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would
likewise be impossible to conceive that the accused needed so large an amount of opium for
his personal use. No better explanation being possible, the logical deduction is that the
defendant intended this opium to be brought into the Philippine Islands. We accordingly find
that there was illegal importation of opium from a foreign country into the Philippine Islands.
To anticipate any possible misunderstanding, let it be said that these statements do not
relate to foreign vessels in transit, a situation not present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt as
charged and the sentence of the trial court being within the limits provided by law, it results
that the judgment must be affirmed with the costs of this instance against the appellant. So
ordered.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of First
Instance of Manila, sustaining the demurrer presented by the defendant to the information
that initiated this case and in which the appellee is accused of having illegally smoked opium,
aboard the merchant vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and
dismissed the case.
The question that presents itself for our consideration is whether such ruling is erroneous or
not; and it will or will not be erroneous according as said court has or has no jurisdiction over
said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over crime, like
the one herein involved, committed aboard merchant vessels anchored in our jurisdiction
waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International
Law; to wit, the French rule, according to which crimes committed aboard a foreign
merchant vessels should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed, unless their commission affects the peace and
security of the territory; and the English rule, based on the territorial principle and followed
in the United States, according to which, crimes perpetrated under such circumstances are in
general triable in the courts of the country within territory they were committed. Of this two
rules, it is the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief
Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such individuals or merchants did
not owe temporary and local allegiance, and were not amenable to the jurisdiction
of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime
committed on the high seas or within the territorial waters of any other country,
but when she came within three miles of a line drawn from the headlands, which
embrace the entrance to Manila Bay, she was within territorial waters, and a new
set of principles became applicable. (Wheaton, International Law [Dana ed.], p.
255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.)
The ship and her crew were then subject to the jurisdiction of the territorial
sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs.
Keeper of the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which disturb
only the peace of the ship or those on board are to be dealt with exclusively by the
sovereignty of the home of the ship, but those which disturb the public peace may
be suppressed, and, if need be, the offenders punished by the proper authorities of
the local jurisdiction. It may not be easy at all times to determine which of the two
jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on
the attending circumstances of the particular case, but all must concede that
felonious homicide is a subject for the local jurisdiction, and that if the proper
authorities are proceeding with the case in the regular way the consul has no right
to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine
Islands, aboard a foreign vessel in transit in any local port, does not, as a general
rule, constitute a crime triable by the courts of the Islands, such vessels being
considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the
vessels upon Philippine soil; in such a case an open violation of the laws of the land
is committed with respect to which, as it is a violation of the penal law in force at
the place of the commission of the crime, no court other than that established in
the said place has jurisdiction of the offense, in the absence of an agreement under
an international treaty.
As to whether the United States has ever consented by treaty or otherwise to renouncing
such jurisdiction or a part thereof, we find nothing to this effect so far as England is
concerned, to which nation the ship where the crime in question was committed belongs.
Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the
following:

There shall be between the territories of the United States of America, and all the
territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The
inhabitants of the two countries, respectively, shall have liberty freely and securely
to come with their ships and cargoes to all such places, ports and rivers, in the
territories aforesaid, to which other foreigners are permitted to come, to enter into
the same, and to remain and reside in any parts of the said territories, respectively;
also to hire and occupy houses and warehouses for the purposes of their
commerce; and, generally, the merchants and traders of each nation respectively
shall enjoy the most complete protection and security for their commerce, but
subject always to the laws and statutes of the two countries, respectively. (Art. 1,
Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held
by this court not triable by or courts, because it being the primary object of our Opium Law
to protect the inhabitants of the Philippines against the disastrous effects entailed by the use
of this drug, its mere possession in such a ship, without being used in our territory, does not
being about in the said territory those effects that our statute contemplates avoiding. Hence
such a mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant
ship, is certainly a breach of the public order here established, because it causes such drug to
produce its pernicious effects within our territory. It seriously contravenes the purpose that
our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the
Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at

anchor in the port of Manila in open defiance of the local authorities, who are
impotent to lay hands on him, is simply subversive of public order. It requires no
unusual stretch of the imagination to conceive that a foreign ship may come into
the port of Manila and allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin
for further proceedings in accordance with law, without special findings as to costs. So
ordered.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery
and Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque
brutes like Blackbeard flourished, seem far away in the pages of history and romance.
Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas,
but stripped of all touches of chivalry or of generosity, so as to present a horrible case of
rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another
Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other
boat eleven men, women, and children, likewise subjects of Holland. After a number of days
of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands
of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by six vintas
manned by twenty-four Moros all armed. The Moros first asked for food, but once on the
Dutch boat, too for themselves all of the cargo, attacked some of the men, and brutally
violated two of the women by methods too horrible to the described. All of the persons on
the Dutch boat, with the exception of the two young women, were again placed on it and
holes were made in it, the idea that it would submerge, although as a matter of fact, these
people, after eleven days of hardship and privation, were succored violating them, the Moros
finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who
also raped one of the women, and Saraw. At Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine
Islands. There they were arrested and were charged in the Court of First Instance of Sulu with
the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on
the grounds that the offense charged was not within the jurisdiction of the Court of First
Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a
public offense, under the laws in force in the Philippine Islands. After the demurrer was
overruled by the trial judge, trial was had, and a judgment was rendered finding the two
defendants guilty and sentencing each of them to life imprisonment (cadena perpetua), to
return together with Kinawalang and Maulanis, defendants in another case, to the offended
parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present.
Piracy is robbery or forcible depredation on the high seas, without lawful authority and done
animo furandi, and in the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is
again done in this court, that the Court of First Instance was without jurisdiction of the case.
Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but
against all mankind. It may be punished in the competent tribunal of any country where the
offender may be found or into which he may be carried. The jurisdiction of piracy unlike all
other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does
it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign
state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong
[1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first
time is whether or not the provisions of the Penal Code dealing with the crime of piracy are
still in force. Article 153 to 156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of
another nation not at war with Spain, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war
with Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the
next preceding article shall suffer the penalty of cadena perpetua or death, and
those who commit the crimes referred to in the second paragraph of the same
article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the
same.
2. Whenever the crime is accompanied by murder, homicide, or by any of
the physical injuries specified in articles four hundred and fourteen and
four hundred and fifteen and in paragraphs one and two of article four
hundred and sixteen.
 3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of
saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this
code, when Spain is mentioned it shall be understood as including any part of the
national territory.
ART. 156. For the purpose of applying the provisions of this code, every person,
who, according to the Constitution of the Monarchy, has the status of a Spaniard
shall be considered as such.
The general rules of public law recognized and acted on by the United States relating to the
effect of a transfer of territory from another State to the United States are well-known. The
political law of the former sovereignty is necessarily changed. The municipal law in so far as it
is consistent with the Constitution, the laws of the United States, or the characteristics and
institutions of the government, remains in force. As a corollary to the main rules, laws
subsisting at the time of transfer, designed to secure good order and peace in the
community, which are strictly of a municipal character, continue until by direct action of the
new government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn
[1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the
Commanding General of the Army of Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the municipal
laws of the conquered territory, such as affect private rights of person and
property, and provide for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and practice they are not
usually abrogated, but are allowed to remain in force, and to be administered by
the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion.
(Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were
meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1
of the Constitution of the Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the
civil law, and he has never been disputed. The specific provisions of the Penal Code are
similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This
must necessarily be so, considering that the Penal Code finds its inspiration in this respect in
the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to
define and punish piracies and felonies committed on the high seas, and offenses against the
law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books
the necessary ancillary legislation, provided that whoever, on the high seas, commits the
crime of piracy as defined by the law of nations, and is afterwards brought into or found in
the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly
death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of
Congress were content to let a definition of piracy rest on its universal conception under the
law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to
piracy are not inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of piracy,
would be that wherever "Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be substituted by the
expression "citizens of the United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to
give to the word "authority" as found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but only public officers in the
Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:
The crime of piracy committed against citizens of the United States and citizens of
the Philippine Islands, or the subjects of another nation not at war with the United
States, shall be punished with a penalty ranging from cadena temporal to cadena
perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war
with the United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles
153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article
154. There are present at least two of the circumstances named in the last cited article as
authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an
offense against chastity and (2) the abandonment of persons without apparent means of
saving themselves. It is, therefore, only necessary for us to determine as to whether the
penalty of cadena perpetua or death should be imposed. In this connection, the trial court,
finding present the one aggravating circumstance of nocturnity, and compensating the same
by the one mitigating circumstance of lack of instruction provided by article 11, as amended,
of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime was deliberately
augmented by causing other wrongs not necessary for its commission, that advantage was
taken of superior strength, and that means were employed which added ignominy to the
natural effects of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying and aggravating
circumstances here present, which cannot be offset by the sole mitigating circumstance of
lack of instruction, and the horrible nature of the crime committed, it becomes our duty to
impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of
the death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the
women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his
nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is
reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy
and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by
the judge of first instance of the Twenty-sixth Judicial District. The two appellants together
with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and
severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part
of the costs of both instances. So ordered.

Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
Republic of the Philippines WHEREFORE, Judgment is rendered as follows:

SUPREME COURT

Manila 1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto Loreto Ringor Guilty
beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of
the Revised Penal Code as amended by Section 6, RA 7659, qualified by Treachery and as
further qualified by the use of an unlicensed firearm and hereby sentences him to suffer the
supreme penalty of Death; to indemnify the heirs of deceased Marcelino Florida, Jr., the sum
EN BANC
of P50,000.00 for his death and the sum of P100,000.00 as Moral damages for his death,
both indemnification being without subsidiary imprisonment in case of insolvency and to pay
the costs.

2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto Ringor Guilty
beyond reasonable doubt of the offense of Violation of Section 1 PD 1866 (Illegal Possession
G.R. No. 123918 December 9, 1999 of firearm and ammunitions) as charged in the Information and hereby sentences him,
applying the Indeterminate Sentence Law, to an imprisonment ranging from 17 years 4
months and 1 day as Minimum to 20 years as Maximum and to pay the costs.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A) being the subject
of the offense is hereby declared confiscated and forfeited in favor of the State.

AUGUSTO LORETO RINGOR, JR., accused-appellant.

The accused Augusto Loreto Ringor is entitled to be credited in the service of his sentence
four fifth (4/5) of his preventive imprisonment in accordance with Article 29 of the Revised
Penal Code.

PURISIMA, J.: SO ORDERED.2

For automatic review is the Decision 1 dated November 13, 1995 of Branch 6 of the Regional Filed on June 28, 1994, the Informations against accused-appellant, alleges:
Trial Court in Baguio City, finding accused-appellant Augusto Loreto Ringor, Jr. guilty of the
crime of murder and sentencing him to suffer the supreme penalty death in Criminal Case
No. 13102-R, also guilty of illegal possession of firearms under P.D. No. 1866 in Criminal Case
No. 13100-R for and disposing thus:
In Criminal Case No. 13102-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then armed with a
Caliber 38 handgun paltick with Serial Number 853169 and with intent to kill, did then and
there willfully, unlawfully, and feloniously attack, assault and shoot MARCELINO BUSLAY
FLORIDA, JR. thereby inflicting upon the latter hypovolemic shock secondary to massive
hemorrhage; multiple gunshot wounds of the liver, stomach, small intestine and mesentric
blood vessels, which injuries directly caused his death.
That the qualifying circumstance of TREACHERY attended the commission of the crime when
the accused suddenly attacked victim and shot him several times at the back, with the use of
a handgun, thus employing means, methods of forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense
which the offended party might make.
CONTRARY TO LAW.3
and in Criminal Case No. 13100-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the
jurisdiction of this honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously possess and carry outside of his residence, a firearm, Caliber .38
revolver (Paltik) bearing Serial Number 853169, without any legal authority or permit from
any government official or authority concerned, in violation of the above cited provision of
law.
CONTRARY TO LAW. 4
With the accused-appellant, assisted by counsel, entering a plea of Not Guilty upon
arraignment, a joint trial of the two cases ensued.
The inculpatory facts and circumstances sued upon are succinctly summarized in the
Appellee's Brief as follows:
On June 23, 1994, at around 6:00 P.M. (sic), Fely Batanes, a waitress at People's Restaurant
located at Kalantiao St., Baguio City, saw appellant Ringor and his two companions enter the
restaurant. (Tsn, December 8, 1994, p. 4). After seating themselves, the group ordered a
bottle of gin (ibid., p. 6). Minutes later, appellant approached one of the tables where
Florida, the restaurant's cook was drinking beer. Without any warning, appellant pulled
Florida's hair and poked a knife on the latter's throat. Florida stood up and pleaded with
appellant not to harm him (ibid., p. 7). Appellant relented and released his grip on Florida.
Thereafter, he left the restaurant together with his companions. However, a few minutes
latter he was back (ibid, p. 8).
Appellant brandished a gun and menacingly entered the restaurant. Not encountering any
resistance, he thus proceeded to the kitchen where Florida worked (ibid). Stealthily
approaching Florida from behind, appellant fired six successive shots at Florida who fell down
(ibid., p. 9). His evil deed accomplished, appellant left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at onlookers that the person he
was running after was armed and had just killed somebody. Alerted, SPO2 Fernandez, who
was then in the vicinity, went into action and nabbed appellant. He frisked appellant and
recovered from him a Paltik revolver, caliber. 38, with Serial Number 853169 (Exh. A). He
checked the revolver's cylinder and found six empty cartridges (Exhs. T to T-6). He noted that
it smelled of gunpowder. He and PO1 Ortega turned over appellant and the confiscated
firearm to the Investigation Division of the Baguio Police and then executed a Joint Affidavit
of Arrest (Exhibit O). On the same night, Fely Batanes gave her sworn statement (Exhibit E) to
the Baguio Police wherein she positively identified appellant as the assailant.
xxx xxx xxx
NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive for nitrates as
stated in her Chemist Report No. C-94-22. She conducted a microscopic chemical
examination on the subject firearm and found that the gun was fired within one week prior
to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI, Manila, tested
and concluded that the slugs recovered from the victim were fired from appellant's firearm.
Upon verification from the Firearms Explosive division, Camp Crame, Quezon City, it was
found that appellant is not a licensed firearm holder nor, was the subject firearm duly
registered with the said office (Exh. A). 5
The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a
Necropsy Report, which states:
POST MORTEM FINDINGS
Body of a male, 1.66 m. height, medium built, with complete rigor mortis, lividity well
developed on the dependent parts, cloudy cornea and dilated pupils with very pale papebral
conjunctive.
Gunshot wounds: GSW no. 1 measuring 10 x 10 mm. serrated edges, positive powder burns
located at the left mid clavicular line, posterior, 2 inches below the shoulder. It was directed
downward towards the mid-body, penetrating the skin. (sic) soft tissue, middle 3rd of the 3rd
rib, the upper and lower lobes of the left lung to the diaphragm, through and through the
stomach, lacerating the superior mesentric vessels, perforating the small intestine then
lodged at the superior surface of the urinary bladder (slug was recovered marked no. 1)
GSW no. 2 measures 8 mm. diameter, positive powder burns, located on the right shoulder
near the s. joint posteriorly, penetrating the skin, soft tissue, then lodged at the surface of
the fractured surgical neck of the humorous (sic) (slug recovered). Marked no. 2.
GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the right shoulder
posteriorly near the joint penetrating the skin, soft tissues, and the head of the Humorous,
(sic) then dislodged form the same entry point.
GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located at the anterior
left parasternal line at the level of the 6th ICS. It was directed downward towards the
posterior of the body, penetrating the skin, soft tissue, the left lobe of the liver with partial
avulsion, then perforating the stomach through and though the duodenum lumbar muscle
then lodged underneath the skin, (1) paravertebral, level of L3 (slug recovered marked no. 4).
CAUSE OF DEATH:
HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE; MULTIPLE GUNSHOT
WOUND(S) OF THE LIVER, STOMACH, SMALL INTESTINE AND MESENTRIC BLOOD VESSELS.
Multiple Gunshot Wound(s) of the body. 6
Accused-appellant admitted shooting the victim but theorized that he acted in self-defense.
As embodied in the Appellant's Brief, the defense version runs thus:
3.01 On June 23, 1994, at a little after five o'clock in the afternoon, appellant, together with
two (2) other companions, entered the People's Restaurant in Baguio City to order drinks.
They sat at a table next to another then occupied by Marcelino B. Florida, Jr. (Florida) and a
woman companion (TSN, Testimony of Augusto Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6).
3. 02 Soon after receiving their orders, appellant's companion, Ramon Fernandez, stood up
and approached Florida to inquire about his (Fernandez') brother, Cesar. Florida angrily
responded to the query and said, "Putang ina ninyo! anong pakialam ko diyan!"
3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the appellant to
intervene and pacify Fernandez. When Fernandez drew out a gun from his waist, appellant
immediately seized the same directing his friend to leave the restaurant before he started
hurting other people with his gun. No sooner had Fernandez stepped out, however, Florida,
armed with a bolo, came charging in from the kitchen and headed towards the appellant.
(Ibid., pp. 6-7)
3.04 Surprised, appellant shot Florida with the gun he was holding just as the latter was
about to hit him with the bolo. Thereafter, appellant put the gun on the table and walked out
of the restaurant. Once already outside the restaurant, appellant's other companion, Virgilio,
followed him and handed to him the gun he (appellant) left at the table. He then proceeded
to surrender the gun and report the incident at the nearest police station. (Ibid., pp. 8-9)
3.05 Before appellant could reach the police station, however, appellant was already
arrested by off-duty policeman who brought him back to the People's Restaurant. Appellant
was thereafter incarcerated at the Baguio City Police Station. (Ibid., pp. 10-12) 7
On November 13, 1995, the trial court handed down decision under automatic review.
Accused-appellant contends that:
I
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE ILLEGAL POSSESSION
OF FIREARMS AND SENTENCING HIM TO SUFFER AN INDETERMINATE SENTENCE OF 17
YEARS AND 1 DAY AS MINIMUM TO 20 YEARS AS MAXIMUM.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER.
III
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO DEATH ON THE
GROUNDS THAT: (i) THE CHARGE OF MURDER WAS NOT PROVED BY THE PROSECUTION; AND
(ii) ASSUMING ARGUENDO THAT MURDER WAS COMMITTED BY APPELLANT, THE
APPROPRIATE PENALTY FOR THE OFFENSE IS RECLUSION PERPETUA THERE BEING NO
AGGRAVATING CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH. 8
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the
killing. The onus probandi is thus shifted to him to prove the elements of self-defense and
that the killing was justified; 9 otherwise, having admitted the killing, conviction is
inescapable. Concomitantly, he must rely on the strength of his own evidence and not on the
weakness of the prosecution's evidence. 10
For self-defense to prosper, it must be established that: (1) there was unlawful aggression by
the victim; (2) that the means employed to prevent or repel such aggression was reasonable;
and (3) that there was lack of sufficient provocation on the part of person defending himself.
11
In the case at bar, accused-appellant failed to prove the element of unlawful aggression. The
allegation that the victim allegedly went out of the kitchen armed with a bolo, and was about
to hack him (accused-appellant) who was then at an almost prone lying position on the table
he was occupying, 12 is a self-serving and unconvincing statement which did not anyway
constitute the requisite quantum of proof for unlawful aggression. Prosecution witness Fely
Batanes, a waitress in the restaurant where the shooting incident occurred, was firm in her
declaration that the victim was in the kitchen unarmed 13 when the accused-appellant shot
him. The victim had no weapon or bolo. He was neither threatening to attack nor in any
manner manifesting any aggressive act which could have imperiled accused-appellant's
safety and well-being.
No improper motive having been shown on the part of Fely Batanes to testify falsely against
accused-appellant or to implicate him in the commission of the crime, the logical conclusion
is that there was no such improper motive and her testimony is worthy of full faith and
credit. 14
What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after
the incident, the body of the victim was found lying in the kitchen and not outside; thus
weakening further the theory of accused-appellant that he shot the victim while they were at
the dining area. 15
Then too, the nature, location and number of gunshot wounds inflicted on the deceased
belie accused-appellant's theory of self-defense. 16 The deceased sustained three gun shot
wounds on the back and one in front. Dr. John Tinoyan, who conducted the autopsy on the
cadaver of the victim, testified that the gunshot wound on the frontal portion of the victim's
body showed a downward trajectory of the bullet on his chest, penetrating the liver,
perforating the stomach down to the small intestine, and then lodged underneath the skin.
17 Verily, such finding negates the claim of accused-appellant that he shot the victim while
he was at an almost prone lying position and the victim was standing in front of him about to
strike with a bolo. If this were true, the trajectory of the bullet should have been upward or
better still, it should have been at the level at which the gun was fired while he (accused-
appellant) was in a prone lying position.
Rather telling are the three gunshot wounds on the back of the victim, which wounds
showed traces of gunpowder which, according to Dr. Tinoyan, indicated that the weapon
used was at a distance of less than one meter. 18 Evidently, accused-appellant stealthily
approached the victim from behind and fired at him six successive shots, four of which hit
him, to ensure his death. 19 If he shot the victim merely to defend himself, there would have
been no cause for accused-appellant to pump several bullets into the body of the victim.
In light of the foregoing, the imputation of unlawful aggression on the part of the victim
cannot be believed. Absent the element of unlawful aggression by the deceased, there can
be no self-defense, complete or incomplete. If there was no unlawful aggression, there was
nothing to prevent or repel and the second and third requisites of self-defense would have
no basis. 20
The Court a quo properly appreciated the aggravating circumstance of treachery which
qualified the crime to murder. It was clearly established that the accused-appellant fired six
successive shots on the victim, suddenly, without warning, and from behind, giving the victim
no chance to flee or to prepare for his defense or to put up the least resistance to such
sudden assault. There is treachery when the means, manner or method of attack employed
by the offender offered no risk to himself from any defensive or retaliatory act which the
victim might have taken. 21
All things studiedly considered and viewed in proper perspective, the mind of the Court can
rest easy on a finding that accused-appellant Augusto Loreto Ringor, Jr. is guilty beyond
reasonable doubt of the crime of murder, and did not act in self-defense.
Art. 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua
to death for the crime of murder. When, as in this case, neither aggravating nor mitigating
circumstance is attendant, the lesser penalty of reclusion perpetua has to be applied, 22 in
accordance with Article 63(2) of the Revised Penal Code.
With respect to the conviction of accused-appellant for illegal possession of firearms under
P.D. No. 1866, it was held in the case of People vs.
Molina 23 and reiterated in the recent case of People vs. Ronaldo Valdez, 24 that in cases
where murder or homicide is committed with the use of an unlicensed firearm, there can be
no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in
view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of
unlicensed firearm in murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a separate offense. Furthermore,
the penalty for illegal possession of firearms shall be imposed provided that no other crime is
committed. 25 In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special
aggravating circumstance. 26
It bears stressing, however, that the dismissal of the present case for illegal possession of
firearm should not be misinterpreted to mean that there can no longer be any prosecution
for the offense of illegal possession of firearms. In general, all pending cases involving illegal
possession of firearms should continue to be prosecuted and tried if no other crimes
expressly provided in R. A. No. 8294 are involved (murder or homicide, under Section 1, and
rebellion, insurrection, sedition or attempted coup d' etat, under Section 3). 27
Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to the
accused, it has to be applied retroactively. Thus, insofar as it spares accused-appellant a
separate conviction for illegal possession of firearms, Republic Act No. 8294 has to be given
retroactive application in Criminal Case No. 13100-R.
On the matter of the aggravating circumstance of "use of unlicensed firearm" in the
commission of murder or homicide, the trial court erred in appreciating the same to qualify
to death the penalty for the murder committed by accused-appellant. It should be noted that
at the time accused-appellant perpetrated the offense, the unlicensed character of a firearm
used in taking the life of another was not yet an aggravating circumstance in homicide or
murder; to wit:
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is DISMISSED.
if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use No pronouncement as to costs.
merely as a qualifying circumstance and not as an offense. That could not have been the
intention of the lawmaker because the term "penalty" in the subject provision is obviously
meant to be the penalty for illegal possession of firearm and not the penalty for for homicide
or murder. We explicitly stated in Tac-an:
SO ORDERED.

There is no law which renders the use of an unlicensed firearm as an aggravating

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
circumstances in homicide or murder. Under an information charging homicide or muder, the
Ynares-Santiago and De Leon, Jr., JJ., concur.
fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty
of the second offense of homicide or murder to death (or reclusion perpetua under 1987
Constitution). The essential point is that the unlicensed character or condition of the
instrument used in destroying human life or committing some other crime, is not included on
the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. Davide, Jr., C.J. and Panganiban, J., in the result.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying
circumstance. 28 (Emphasis supplied)

Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed
firearm as an aggravating circumstance in murder or homicide, the penalty for the murder
committed by accused-appellant on June 23, 1994 was not death, as erroneously imposed by
the trial court. There was yet no such aggravating circumstance of use of unlicensed firearm
to raise the penalty for murder from reclusion perpetua to death, at the time of commission
of the crime.

The amendatory law making the "use of an unlicensed firearm" as an aggravating

circumstance in murder or homicide, cannot be applied here because the said provision of
R.A. No. 8294 is not favorable to accused-appellant, lest it becomes an ex post facto law. 29

WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the modification
that accused-appellant Augusto Loreto Ringor, Jr. is hereby sentenced to suffer the penalty of
reclusion perpetua. It is understood that the civil liabilities imposed below are UPHELD.
Republic of the Philippines Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their
release from imprisonment. Meted out life terms for the complex crime of rebellion with
SUPREME COURT murder and other crimes, they would invoke the People v. Hernandez1 doctrine, negating
the existence of such an offense, a ruling that unfortunately for them was not handed down
until after their convictions had become final. Nor is this the first instance, a proceeding of
Manila
this character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for
habeas corpus, a similar question was presented. The answer given was in the negative.
Petitioners plead for a new look on the matter. They would premise their stand on the denial
of equal protection if their plea would not be granted. Moreover they did invoke the codal
EN BANC provision that judicial decisions shall form part of the legal system of the Philippines,3
necessarily resulting in the conclusion that the Hernandez decision once promulgated calls
for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws
having such character even if at the time of their application a final sentence has been
rendered "and the convict is serving the same."4 These arguments carry considerable
persuasion. Accordingly we find for petitioners, without going so far as to overrule Pomeroy.

G.R. No. L-30026 January 30, 1971 Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer
reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson
and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua,
likewise pleaded guilty to the complex crime of rebellion with multiple murder and other
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the
PATERNO PALMARES, petitioners, first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner,
Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and
other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the
vs.
petitioners has been since then imprisoned by virtue of the above convictions. Each of them
has served more than 13 years.5
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.

Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the information
Jose W. Diokno for petitioners. against the accused in that case for rebellion complexed with murder, arson and robbery was
not warranted under Article 134 of the Revised Penal Code, there being no such complex
offense.7 In the recently-decided case of People vs. Lava,8 we expressly reaffirmed the ruling
in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres such doctrine. It is the contention of each of the petitioners that he has served, in the light of
and Solicitor Eduardo C. Abaya for respondent. the above, more than the maximum penalty that could have been imposed upon him. He is
thus entitled to freedom, his continued detention being illegal.9

FERNANDO, J.:
The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus
proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew
and, if necessary, discarded. We can resolve the present petition without doing so. The plea
there made was unconvincing, there being a failure to invoke the contentions now pressed
vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a
constitutional right that would suffice to raise a serious jurisdictional question and the
retroactive effect to be given a judicial decision favorable to one already sentenced to a final
judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry
weight. We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the
circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and
detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for
nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is
any legal justification for a deprivation of physical freedom. Unless there be such a showing,
the confinement must thereby cease. If there be a valid sentence it cannot, even for a
moment, be extended beyond the period provided for by law. Any deviation from the legal
norms call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights provision" in
the fundamental law. 10 Nor is such praise unique. Cooley spoke of it as "one of the principal
safeguards to personal liberty." 11 For Willoughby, it is "the greatest of the safeguards
erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention
may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to it as "one
of the most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him,
"without it much else would be of no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty
coupled with its limitations may be detected in the opinions of former Chief Justices Arellano,
15 Avanceña, 16 Abad Santos, 17 Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It
fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its
amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in handy to
challenge the validity of the order of the then respondent Mayor of Manila who, for the best
of reasons but without legal justification, ordered the transportation of more than 150
inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as
having been devised and existing "as a speedy and effectual remedy to relieve persons from
unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even if
presented in pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen,
23 where this Court, again through Justice Malcolm, stated: "As standing alone the petition
for habeas corpus was fatally defective in its allegations, this court, on its motion, ordered
before it the record of the lower court in the case entitled Thomas Casey, et al. v. George
Ganaway." 24 It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the
doctrine, one that broadens the field of the operation of the writ, that a disregard of the
constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if
"restrained of his liberty, by habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter
thus: "The writ of habeas corpus is a high prerogative writ, known to the common law, the
great object of which is the liberation of those who may be imprisoned without sufficient
cause." Then there is this affirmation from an 1869 decision 28 of the then Chief Justice
Chase: "The great writ of habeas corpus has been for centuries esteemed the best and only
sufficient defense of personal freedom." The passing of the years has only served to confirm
its primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas spoke
for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ...
The scope and flexibility of the writ — its capacity to reach all manner of illegal detention —
its ability to cut through barriers of form and procedural mazes — have always been
emphasized and jealously guarded by courts and lawmakers. The very nature of the writ
demands that it be administered with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and corrected." 29 Justice Fortas
explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ, in
all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his
adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through
all forms and goes to the very tissue of the structure."
2. Where, however, the detention complained of finds its origin in what has been judicially
ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if
"the person alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the process, render the judgment, or make the
order," the writ does not lie. 31 That principle dates back to 1902, 32 when this Court
announced that habeas corpus was unavailing where the person detained was in the custody
of an officer under process issued by a court or magistrate. This is understandable, as during
the time the Philippines was under American rule, there was necessarily an adherence to
authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional defect. As
summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on
which this court, or any court, without some special statute authorizing it, will give relief on
habeas corpus to a prisoner under conviction and sentence of another court is the want of
jurisdiction in such court over the person or the cause, or some other matter rendering its
proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment
is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of
equal protection. According to their petition: "In the case at bar, the petitioners were
convicted by Courts of First Instance for the very same rebellion for which Hernandez,
Geronimo, and others were convicted. The law under which they were convicted is the very
same law under which the latter were convicted. It had not and has not been changed. For
the same crime, committed under the same law, how can we, in conscience, allow
petitioners to suffer life imprisonment, while others can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people similarly
situated were not similarly dealt with. What is required under this required constitutional
guarantee is the uniform operation of legal norms so that all persons under similar
circumstances would be accorded the same treatment both in the privileges conferred and
the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be given to
every person under circumstances, which if not identical are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class should be treated in the
same fashion, whatever restrictions cast on some in the group equally binding on the rest."
36
The argument of petitioners thus possesses a persuasive ring. The continued incarceration
after the twelve-year period when such is the maximum length of imprisonment in
accordance with our controlling doctrine, when others similarly convicted have been freed, is
fraught with implications at war with equal protection. That is not to give it life. On the
contrary, it would render it nugatory. Otherwise, what would happen is that for an identical
offense, the only distinction lying in the finality of the conviction of one being before the
Hernandez ruling and the other after, a person duly sentenced for the same crime would be
made to suffer different penalties. Moreover, as noted in the petition before us, after our
ruling in People v. Lava, petitioners who were mere followers would be made to languish in
jail for perhaps the rest of their natural lives when the leaders had been duly considered as
having paid their penalty to society, and freed. Such a deplorable result is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the
Revised Penal Code which requires that penal judgment be given a retroactive effect. In
support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v.
Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the above
provision is made not to judicial decisions but to legislative acts, petitioners entertain the
view that it would be merely an exaltation of the literal to deny its application to a case like
the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code
provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-
known dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is
truly the law-giver to all intents and purposes, and not the person who first thought or spoke
them." It is to be admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist
John Chipman Gray, were much impressed with the truth and the soundness of the above
observations. We do not have to go that far though. Enough for present purposes that both
the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive
application.
It being undeniable that if the Hernandez ruling were to be given a retroactive effect
petitioners had served the full term for which they could have been legally committed, is
habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as 1910
the prevailing doctrine was announced in Cruz v. Director of Prisons. 45 Thus: "The courts
uniformly hold that where a sentence imposes punishment in excess of the power of the
court to impose, such sentence is void as to the excess, and some of the courts hold that the
sentence is void in toto; but the weight of authority sustains the proposition that such a
sentence is void only as to the excess imposed in case the parts are separable, the rule being
that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has
served out so much of the sentence as was valid." 46 There is a reiteration of such a principle
in Director v. Director of Prisons 47 where it was explicitly announced by this Court "that the
only means of giving retroactive effect to a penal provision favorable to the accused ... is the
writ of habeas corpus." 48 While the above decision speaks of a trial judge losing jurisdiction
over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation
that it is the only means of benefiting the accused by the retroactive character of a favorable
decision holds true. Petitioners clearly have thus successfully sustained the burden of
justifying their release.
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood

trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be rebellion with multiple murder and other crimes, and have served or are now entering into
forthwith set at liberty. their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on
December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods
they were under pre-conviction detention). The leaders of the rebellion who were meted out
death and life sentences for the same charge by the Court of First Instance of Manila had
their sentences reduced last near to ten years of prision mayor by the Court in People v.
Dizon and Zaldivar, JJ., concur.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956 in People
vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common crimes
since such common crimes "assume the political complexion of the main crime of which they
are mere ingredients and consequently cannot be punished separately from the principal
Concepcion, C.J., concurs in the result. offense, or complexed with the same, to justify the imposition of a graver penalty." The
Court rejected therein the State's plea for the reexamination and setting aside of such
doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a very serious
consideration, but after a mature deliberation the members of this Court have decided to
maintain that ruling in the Hernandez case and to adhere to what this Court said in that
Castro and Makasiar, JJ., took no part. case." The said leaders have since been duly freed as having served out their penalty, but
their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference
to persons in custody pursuant to a final judgment, the rule is that the writ of habeas corpus
can issue only for want of jurisdiction of the sentencing court, and cannot function as a writ
of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted therein,
"the existence of the 'complexed' rebellion (was) still upheld by a sizable number of lawyers,
prosecutors, judges and even justices of this Court." But with the doctrine first enunciated in
1956 in Hernandez by a bare six-to-four majority vote having withstood the test of time6 and
having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot
now be gainsaid that it is now part of our legal system that the crime of "complexed"
rebellion does not exist in our Revised Penal Code. No prosecutor would now file an
information for "complexed" rebellion but simply for the offense of simple rebellion as
defined in Article 134 of the Revised Penal Code, and even if such an information for
Separate Opinions "complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the
Revised Penal Code that:

TEEHANKEE, J., concurring and dissenting:

ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar
as they favor the person guilty of a felony, who is not a habitual criminal, as this term is
defined in rule 5 of article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines."
The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their
conviction and they were accordingly sentenced, and the statutory penalty were now
reduced to prision mayor or 12 years imprisonment; having served out the maximum penalty
of 12 years now imposed by the amended statute, they would be entitled to invoke the
retroactive effect of the statute favoring them.lâwphî1.ñèt The only difference between the
situation given and the present case is that here it is this Supreme Court, interpreting the
laws in discharge of its constitutional prerogative, that has laid down the doctrine since
Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should
therefore be now equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life
imprisonment, but the Court has subsequently judicially determined it not be so and that the
maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are entitled to
the benefit of this later judicial declaration, just as if a statutory amendment had been
enacted—not because the sentencing court had no jurisdiction or is now ousted of
jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of Prisons,7
"the only means of giving retroactive effect to a penal provision favorable to the accused
where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is universally
recognized that relief by habeas corpus may be properly sought in cases of imposition of
excessive penalty, such that the part of the sentence beyond or in excess of the power of the
court to impose is held void, the applicant having already served out the entire part of the
sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs. Director of
Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits even to
convicts serving sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under
the former penal law was decreased by the revised code, the excess has become illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences
had jurisdiction or not to impose such penalty, or were right or wrong in imposing such
penalty, the only relevant question now is whether petitioners have served the maximum —
and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since
1956 determined to be the penalty that the Revised Penal Code fixes for the crime of
rebellion. Since they have actually served much more than the maximum imposable penalty,
the excess of the sentence imposed upon them over the imposable maximum of twelve years
of prision mayor cannot but be declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the
prescription of certain election offenses (fixing the same at one year after commission) were
more favorable to the accused than those of the pre-existing law and were therefore
retroactive as to the same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its terms applicable only
to offenses resulting from the new law (which amended the pre-existing Election Law) and
could not be given retroactive effect, the Court found "that practically all of the offenses
defined in the former law are also defined in the same language in Act 3030 (the new law),
the only difference being that the penalties have been increased." Holding that the
retroactivity clause of Article 22 of the Penal Code must apply in all in which the new law is
more favorable to the accused, in the absence of any express statutory exception, the Court
drew this analogy: "Let us suppose that a statute is enacted defining the crime of murder in
the same language in which it is defined in the Penal Code, but providing that the maximum
penalty for the crime defined in the new statute shall be life imprisonment, the statute
containing no provision that it shall not be retroactive in its effect. Would anyone then
maintain that the death penalty might still be imposed for murder committed before the new
statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as to the
enactment of a law statute describing the crime in the same language and imposing a lesser
penalty, but the settled doctrine of this Court that there does not exist in our legal system
the complex crime of rebellion of which the petitioners stand convicted, "since rebellion
cannot form a complex with common crimes, because the latter are either absorbed by the
rebellion itself or are punishable as independent offenses." 11 Petitioners here have been
convicted for the very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after
serving their sentences of ten years of prision mayor, petitioners as mere followers are
serving out the life sentences imposed on them, notwithstanding their already having served
out much more than the maximum penalty of twelve years of prision mayor imposable upon
them. The fact that the legal doubts about the non-existence of the crime of "complexed"
rebellion were cleared up only in 1956 after they had already been convicted and were
serving their sentences does not make the excess in the penalty imposed upon them beyond
the maximum of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary
rule of the law of the case, have no application here. These salutary rules decree that rights
of parties having been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the opportunity to raise
in the case all relevant questions, the decision becomes the law of the case, and vested rights
would be impaired, judicial chaos and disorder ensue and litigation would be never-ending
and would become more intolerable than the wrongs it is intended to redress, should an
adjudicated case be reopened simply because in another and subsequent case, this Court
adopted a new or different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the
Revised Penal Code and the maximum penalty imposable therefor under section 135 of the
same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the
crime of simple rebellion exists in our legal system for which the maximum penalty of prision
mayor may be imposed, the excess of the life sentences imposed upon petitioners over the
imposable maximum of prision mayor cannot stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar
presents a clear case of an excess in penalty imposed beyond twelve years of prision mayor
which has become illegal by virtue of this Court's settled doctrine that the crime of rebellion
cannot be complexed with other common crimes. On this ground, as well as on the further
and more fundamental ground that to hold them liable to continue serving life sentences for
a crime that the law—at the time of their conviction as well as now—punishes only with
prision mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is illegal and
unconstitutional and the petition for habeas corpus should be granted and petitioners
forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of
rebellion with multiple murder and other crimes, and have served or are now entering into
their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on
December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods
they were under pre-conviction detention). The leaders of the rebellion who were meted out
death and life sentences for the same charge by the Court of First Instance of Manila had
their sentences reduced last near to ten years of prision mayor by the Court in People v.
Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956 in People
vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common crimes
since such common crimes "assume the political complexion of the main crime of which they
are mere ingredients and consequently cannot be punished separately from the principal
offense, or complexed with the same, to justify the imposition of a graver penalty." The
Court rejected therein the State's plea for the reexamination and setting aside of such
doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a very serious
consideration, but after a mature deliberation the members of this Court have decided to
maintain that ruling in the Hernandez case and to adhere to what this Court said in that
case." The said leaders have since been duly freed as having served out their penalty, but
their followers, herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference
to persons in custody pursuant to a final judgment, the rule is that the writ of habeas corpus
can issue only for want of jurisdiction of the sentencing court, and cannot function as a writ
of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted therein,
"the existence of the 'complexed' rebellion (was) still upheld by a sizable number of lawyers,
prosecutors, judges and even justices of this Court." But with the doctrine first enunciated in
1956 in Hernandez by a bare six-to-four majority vote having withstood the test of time6 and
having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot
now be gainsaid that it is now part of our legal system that the crime of "complexed"
rebellion does not exist in our Revised Penal Code. No prosecutor would now file an
information for "complexed" rebellion but simply for the offense of simple rebellion as
defined in Article 134 of the Revised Penal Code, and even if such an information for
"complexed" rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the
Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar
as they favor the person guilty of a felony, who is not a habitual criminal, as this term is
defined in rule 5 of article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines."
The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their
conviction and they were accordingly sentenced, and the statutory penalty were now
reduced to prision mayor or 12 years imprisonment; having served out the maximum penalty
of 12 years now imposed by the amended statute, they would be entitled to invoke the
retroactive effect of the statute favoring them. The only difference between the situation
given and the present case is that here it is this Supreme Court, interpreting the laws in
discharge of its constitutional prerogative, that has laid down the doctrine since Hernandez
in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore be
now equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life
imprisonment, but the Court has subsequently judicially determined it not be so and that the
maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are entitled to
the benefit of this later judicial declaration, just as if a statutory amendment had been
enacted—not because the sentencing court had no jurisdiction or is now ousted of
jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of Prisons,7
"the only means of giving retroactive effect to a penal provision favorable to the accused
where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is universally
recognized that relief by habeas corpus may be properly sought in cases of imposition of
excessive penalty, such that the part of the sentence beyond or in excess of the power of the
court to impose is held void, the applicant having already served out the entire part of the
sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs. Director of
Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits even to
convicts serving sentence, and the only legal remedy open to them to make use of such
benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under
the former penal law was decreased by the revised code, the excess has become illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences
had jurisdiction or not to impose such penalty, or were right or wrong in imposing such
penalty, the only relevant question now is whether petitioners have served the maximum —
and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since
1956 determined to be the penalty that the Revised Penal Code fixes for the crime of
rebellion. Since they have actually served much more than the maximum imposable penalty,
the excess of the sentence imposed upon them over the imposable maximum of twelve years
of prision mayor cannot but be declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the
prescription of certain election offenses (fixing the same at one year after commission) were
more favorable to the accused than those of the pre-existing law and were therefore
retroactive as to the same offenses committed before the enactment of the new law. In
meeting the objection that the reduced prescription period was by its terms applicable only
to offenses resulting from the new law (which amended the pre-existing Election Law) and
could not be given retroactive effect, the Court found "that practically all of the offenses
defined in the former law are also defined in the same language in Act 3030 (the new law),
the only difference being that the penalties have been increased." Holding that the
retroactivity clause of Article 22 of the Penal Code must apply in all in which the new law is
more favorable to the accused, in the absence of any express statutory exception, the Court
drew this analogy: "Let us suppose that a statute is enacted defining the crime of murder in
the same language in which it is defined in the Penal Code, but providing that the maximum
penalty for the crime defined in the new statute shall be life imprisonment, the statute
containing no provision that it shall not be retroactive in its effect. Would anyone then
maintain that the death penalty might still be imposed for murder committed before the new
statute was enacted?"
 prision mayor which they have more than fully served, would be to deny them their
constitutional rights of due process and equal protection of the law.
The case at bar for petitioners is much stronger. Here, there is no question even as to the
enactment of a law statute describing the crime in the same language and imposing a lesser
penalty, but the settled doctrine of this Court that there does not exist in our legal system
the complex crime of rebellion of which the petitioners stand convicted, "since rebellion Any further detention of petitioners, in my view as above discussed, is illegal and
cannot form a complex with common crimes, because the latter are either absorbed by the unconstitutional and the petition for habeas corpus should be granted and petitioners
rebellion itself or are punishable as independent offenses." 11 Petitioners here have been forthwith set at liberty.
convicted for the very same rebellion and under the very same law for which their leaders,
Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after
serving their sentences of ten years of prision mayor, petitioners as mere followers are
serving out the life sentences imposed on them, notwithstanding their already having served
out much more than the maximum penalty of twelve years of prision mayor imposable upon Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
them. The fact that the legal doubts about the non-existence of the crime of "complexed"
rebellion were cleared up only in 1956 after they had already been convicted and were
serving their sentences does not make the excess in the penalty imposed upon them beyond
the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary
rule of the law of the case, have no application here. These salutary rules decree that rights
of parties having been decisively settled and determined by final judgment of the court of
competent jurisdiction with the party adversely affected having had the opportunity to raise
in the case all relevant questions, the decision becomes the law of the case, and vested rights
would be impaired, judicial chaos and disorder ensue and litigation would be never-ending
and would become more intolerable than the wrongs it is intended to redress, should an
adjudicated case be reopened simply because in another and subsequent case, this Court
adopted a new or different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question

turns — simply — on the nature of the crime of rebellion as defined in section 134 of the
Revised Penal Code and the maximum penalty imposable therefor under section 135 of the
same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the
crime of simple rebellion exists in our legal system for which the maximum penalty of prision
mayor may be imposed, the excess of the life sentences imposed upon petitioners over the
imposable maximum of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar
presents a clear case of an excess in penalty imposed beyond twelve years of prision mayor
which has become illegal by virtue of this Court's settled doctrine that the crime of rebellion
cannot be complexed with other common crimes. On this ground, as well as on the further
and more fundamental ground that to hold them liable to continue serving life sentences for
a crime that the law—at the time of their conviction as well as now—punishes only with
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling
that Subversion is the "main offense" in a charge of Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion under P.D. No. 1866, as amended, and that,
therefore, the said charge should be quashed in view of a previous charge of Subversion
under R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending in
another court?
Stated differently, is the accused charged with the same offense in both cases, which would
justify the dismissal of the second charge on the ground of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari interposed by the People
under Rule 45 of the Revised Rules of Court, seeking a review of the decision1 of the Court of
Appeals (Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE
PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of
Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with Subversion under
Republic Act No. 1700 (the Anti-Subversion Law), as amended, before the Regional Trial
Court of Manila (Branch 45), National Capital Region, docketed as Criminal Case No. 64079.2
As a consequence thereof, a warrant for his arrest was issued on July 29, 1983,3 but it
remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the
basis of the warrant of arrest in the subversion case.4 When arrested, an unlicensed .38
caliber special revolver and six (6) rounds of live ammunition were found in his possession.5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of
Firearm and Ammunition in Furtherance of Subversion under Presidential Decree No. 1866,
as amended, before the Regional Trial Court of Makati (Branch 148), docketed as Criminal
Case No. 1789. The Information reads:
That on or about the 5th day of June, 1990, in the Municipality of Parañaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being a member of a communist party of the Philippines,
and its front organization, did then and there willfully, unlawfully and feloniously
have in his possession, control and custody, in furtherance of or incident to, or in
connection with the crime of subversion, a special edition ARMSCOR PHILS. caliber
.38 special revolver with Serial No. 1026387 and with six (6) live ammunitions,
without first securing the necessary license or permit thereof from competent
government authority.6
The above Information recommended no bail for Antonio Tujan, which recommendation was
approved by the trial court in an Order dated June 19, 1990.7 The same order also directed
the continued detention of Antonio Tujan at MIG 15 of the Intelligence Service of the Armed
Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion8 invoking his right to a
preliminary investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and
praying that his arraignment be held in abeyance until the preliminary investigation is
terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary
investigation, his counsel withdrew the motion since he would file a motion to quash the
Information, for which reason counsel requested a period of twenty (20) days to do so. This
was granted by the trial court on that same day.9
On July 16, 1990, Antonio Tujan did file the motion to quash10 the Information in Criminal
Case No. 1789 on the ground that he "has been previously in jeopardy of being convicted of
the offense charged" in Criminal Case No. 64079 (for subversion) of the Regional Trial Court
of Manila (Branch 45). The said ground is based on Sections 3 (h) and 7, Rule 117 of the 1985
Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends that
"common crimes such as illegal possession of firearms and ammunition should actually be
deemed absorbed in subversion,"11 citing the cases of Misolas vs. Panga, et al. (G.R. No.
83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5,
1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin
prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke the
constitutional protection against double jeopardy."12
The petitioner opposed13 the motion to quash, arguing that Antonio Tujan does not stand in
jeopardy of being convicted a second time because: (a) he has not even been arraigned in the
subversion case, and (b) the offense charged against him in Criminal Case No. 64079 is for
Subversion, punishable under Republic Act No. 1700; while the present case is for Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion, punishable under a
different law (Presidential Decree No. 1866). Moreover, petitioner contends that Antonio
Tujan's reliance on the Misolas and Enrile cases "is misplaced."14 Tujan merely relies on the
dissenting opinions in the Misolas case. Also, the Enrile case which involved a complex crime
of rebellion with murder is inapplicable to the instant case which is not a complex offense.
Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for
application in the present case because (illegal) possession of firearm and ammunition is not
a necessary means of committing the offense of subversion, nor is subversion a necessary
means of committing the crime of illegal possession of firearm and ammunition."15
The trial court, in an order dated October 12, 1990, granted the motion to quash the
Information in Criminal Case No. 1789, the dispositive portion of the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED, but only in
so far as the accused may be placed in jeopardy or in danger of being convicted or
acquitted of the crime of Subversion and as a consequence the Information is
hereby quashed and the case dismissed without prejudice to the filing of Illegal
Possession of Firearm.
SO ORDERED.16
It is best to quote the disquisition of the respondent court in quashing the information and
dismissing the case:
xxx xxx xxx
In other words, the main offense the accused is being charged in this case is also
Subversion considering that the alleged Illegal Possession of the Firearm and
Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by the
Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is just a
continuing offense of his former charge or that his acts constituting subversion is a
continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution that
this case is very different from the other case and that double jeopardy will attach
in this particular case.
This court agrees with the position taken by the defense that double jeopardy will
attach to the accusation of subversion, punishable now under Republic Act 1700, as
Rule 117 of the Rules of Court particularly Section 1 thereof, provides:
Time to move to quash — At anytime before entering his plea,
the accused may move to quash the complaint or
information.(la)
In other words, there is no necessity that the accused should be arraigned first
before he can move to quash the information. It is before he pleads which the
accused did in this case.
On the other submissions by the prosecution, that the possession of firearms and
ammunitions is not a necessary means of committing the offense of subversion or
vice versa, then if the court follows such argument, there could be no offense of
Illegal Possession of Firearm and Ammunition in furtherance of Subversion, for
even the prosecution admits also that in subversion which is an offense involving
propaganda, counter propaganda, a battle of the hearts and mind of the people
does not need the possession or use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while unquestionably available
to the accused, had not been clearly shown to be invokable(sic)
at this point in time.
But the rule says otherwise as previously stated as provided for under Section 1 of
Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and ammunition which
is separate and distinct from the crime of subversion and is not a necessary
ingredient thereof and the court believed so, the prosecution will have to file
another information as they may wish. The court therefore has to grant the motion
to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering
that the only offense to which the accused in this case may be placed in jeopardy is
Subversion and not Illegal Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days from
receipt of this order otherwise the court will order the release of the accused,
unless he is in custody for some other offense.17 (Emphasis ours)
Petitioner's motion for reconsideration18 was also denied in an order dated December 28,
1990.19
The petitioner elevated the case to the Court of Appeals through a petition for certiorari,
docketed as CA-G.R. SP No. 24273. However, the appellate court found that the trial court
did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in
quashing the questioned Information. In dismissing the petition, the appellate court, in its
decision dated May 27, 1991, basically reiterated the aforequoted ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is
not in accord with the law and applicable jurisprudence; and (2) it was deprived of due
process to prosecute and prove its case against private respondent Antonio Tujan in Criminal
Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866
filed against private respondent Antonio Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion) filed before the Makati court shows that the main case
is subversion considering that there is an allegation that the alleged illegal
possession of firearms was made "in furtherance of or incident to, or in connection
with the crime of subversion." Also, the information alleged likewise that the
accused is a member of a communist party of the Philippines and its front
organization. Basically, the information refers to the crime of Subversion qualified
by Illegal Possession of Firearms. . . .20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal
Case No. 1789 before the Regional Trial Court of Makati (Branch 148), provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part of
firearm, ammunition, or machinery, tool or instrument used or intended to be used
in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms, the
penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection
with the crimes of rebellion, insurrection or subversion, the penalty of death shall be
imposed.
The penalty of reclusion temporal in its maximum period to reclusion perpetua shall
be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company,
corporation or entity to be used by any person or persons found guilty of violating
the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall carry any
licensed firearm outside his residence without legal authority therefor. (Emphasis
ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph
of Section 1, the mere possession of an unlicensed firearm or ammunition is the crime itself
which carries the penalty of reclusion temporal in its maximum period to reclusion perpetua.
The third paragraph of the same Section makes the use of said firearm and ammunition "in
furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or
subversion" a circumstance to increase the penalty to death. Thus, the allegation in the
Information in Criminal Case No. 1789 that the unlicensed firearm found in the possession of
Antonio Tujan, "a member of the communist party of the Philippines and its front
organization," was used "in furtherance of or incident to, or in connection with the crime of
subversion" does not charge him with the separate and distinct crime of Subversion in the
same Information, but simply describes the mode or manner by which the violation of Section
1 of P.D. No. 1866 was committed21 so as to qualify the penalty to death.
There is, therefore, only one offense charged in the questioned information, that is, the
illegal possession of firearm and ammunition, qualified by its being used in furtherance of
subversion.22 There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees
categorically or by implication that the crimes of rebellion, insurrection or subversion are the
very acts that are being penalized. This is clear from the title of the law itself which boldly
indicates the specific acts penalized under it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION,
OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS
USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.
(Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case
No. 64079, before the Regional Trial Court of Manila (Branch 45), is based on a different law,
that is, Republic Act No. 1700, as amended. Section 3 thereof penalizes any person who
"knowingly, willfully and by overt act affiliates with, becomes or remains a member of a
subversive association or organization . . ." Section 4 of said law further penalizes "such
member [of the Communist Party of the Philippines and/or its successor or of any subversive
association] (who) takes up arms against the Government." Thus, in the present case, private
respondent Antonio Tujan could be charged either under P.D. No. 1866 or R.A. No. 1700,23
or both.
This leads us to the issue of whether or not private respondent Antonio Tujan was placed in
double jeopardy with the filing of the second Information for Illegal Possession of Firearm
and Ammunition in Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act.
(Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court
states:
Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has
been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the charge,
the conviction or acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he may raise in a motion to
quash to defeat a subsequent prosecution for the same offense. The pertinent provision of
Rule 117 of the Revised Rules of Court provides:
Sec. 3. Grounds. — The accused may move to quash the complaint or information
on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit of an accused,
the following requisites must have obtained in the first criminal action: (a) a valid complaint
or information; (b) a competent court; (c) the defendant had pleaded to the charge;24 and
(d) the defendant was acquitted, or convicted, or the case against him was dismissed or
otherwise terminated without his express consent.25
Suffice it to say that in the present case, private respondent's motion to quash filed in the
trial court did not actually raise the issue of double jeopardy simply because it had not arisen
yet. It is noteworthy that the private respondent has not even been arraigned in the first
criminal action for subversion. Besides, as earlier discussed, the two criminal charges against
private respondent are not of the same offense as required by Section 21, Article III of the
Constitution.
It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in
accordance with the law and jurisprudence and thus should be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as amended, and the
one for illegal possession of firearm and ammunition in furtherance of subversion under P.D.
No. 1866, as amended, can co-exist, the subsequent enactment of Republic Act No. 7636 on
September 22, 1992, totally repealing R.A. No. 1700, as amended, has substantially changed
the complexion of the present case, inasmuch as the said repealing law being favorable to
the accused-private respondent, who is not a habitual delinquent, should be given
retroactive effect.26
Although this legal effect of R.A. No. 7636 on private-respondent's case has never been
raised as an issue by the parties — obviously because the said law came out only several
months after the questioned decision of the Court of Appeals was promulgated and while the
present petition is pending with this Court — we should nonetheless fulfill our duty as a
court of justice by applying the law to whomsoever is benefited by it regardless of whether
or not the accused or any party has sought the application of the beneficent provisions of the
repealing law.27
That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond
question. The repeal by said law of R.A. No. 1700, as amended, was categorical, definite and
absolute. There was no saving clause in the repeal. The legislative intent of totally abrogating
the old anti-subversion law is clear. Thus, it would be illogical for the trial courts to try and
sentence the accused-private respondent for an offense that no longer exists.28
As early as 1935, we ruled in People vs. Tamayo:29
There is no question that at common law and in America a much more favorable
attitude towards the accused exists relative to statutes that have been repealed
than has been adopted here. Our rule is more in conformity with the Spanish
doctrine, but even in Spain, where the offense ceases to be criminal, prosecution
cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act with was penalized
by a prior law ceases to be criminal under the new law, the previous offense is obliterated.30
It is a recognized rule in this jurisdiction that a total repeal deprives the courts of jurisdiction
to try, convict and sentence persons charged with violation of the old law prior to the
repeal.31
With the enactment of R.A. No. 7636, the charge of subversion against the accused-private
respondent has no more legal basis and should be dismissed.

As regards the other charge of illegal possession of firearm and ammunition, qualified by
subversion, this charge should be amended to simple illegal possession of firearm and
ammunition since, as earlier discussed, subversion is no longer a crime.

Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable
under Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended
Presidential Decree No. 1866, as amended, by eliminating the provision in said P.D. that if the
unlicensed firearm is used in furtherance of subversion, the penalty of death shall he
imposed.32 Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal
possession of firearm (.38 caliber) is now reduced to prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000.00).33 The reduced
penalty of imprisonment — which is four (4) years, two (2) months and one (1) day to six (6)
years — entitles the accused-private respondent to bail. Considering, however, that the
accused-private respondent has been detained since his arrest on June 5, 1990 up to the
present (as far as our record has shown), or more than seven (7) years now, his immediate
release is in order. This is so because even if he were convicted for illegal possession of
firearm and ammunition, the length of his detention while his case is pending has already
exceeded the penalty prescribed by the new law.

WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP
No. 24273, including the orders dated October 12, 1990 and December 28, 1990 of the
Regional Trial Court of Makati (Branch 148), National Capital Region, in Criminal Case No.
1789, are hereby REVERSED and SET ASIDE.

The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case
No. 64079 of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED.

The other Information for illegal possession of firearm and ammunition in furtherance of
subversion against the same accused in Criminal Case No. 1789 of the Regional Trial Court of
Makati, Branch 148, is DEEMED AMENDED to Simple Illegal Possession of Firearm and
Ammunition. The accused-appellant is hereby ordered RELEASED IMMEDIATELY from
detention for the reason stated above, unless he is being detained for any other offense.

This decision is IMMEDIATELY EXECUTORY.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2873 February 28, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO GARCIA Y MADRIGAL, defendant-appellant.
Dominador A. Alafriz for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Cañiza for appellee.
TUASON, J.:
The sole question presented on this appeal is whether the appellant, being 17 years of age at
the time of at the time of the commission of the crime, was entitled to the privileged
mitigating circumstance of article 68, paragraph 2, of the Revised Penal Code. The lower
court, ignoring defendant's minority, sentenced him to an indeterminate penalty of from 4
years, 2 months and 1 day of prision correccional to 8 years of prision mayor for the crime of
robbery of which he was found guilty. He was also sentenced to pay the offended party,
jointly and severally with the other accused, the sum of P85 as indemnity.
Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing from
18 to 16 the age below which accused have to "be committed to the custody or care of a
public or private, benevolent or charitable institution," instead of being convicted and
sentenced to prison, has given rise to the controversy. The Solicitor General believes that the
amendment by implication has also amended paragraph 2 of article 68 of the Revised Pena
Code, which provides that when the offender is over fifteen and under eighteen years age,
"The penalty next lower than that prescribed by law shall be imposed, but always in the
proper period."
There are well recognized rules of statutory construction which are against the Government's
contention.
One of these rules is that all parts of a statute are to be harmonized and reconciled so that
effect may be given to each and every part thereof, and that conflicting intention in the same
statute are never to be supposed or so regarded, unless forced upon the court by an
unambiguous language. (59 C. J., 999.)
This rule applies in the construction of a statute and its amendment, both being read
together as whole. "An amended act is ordinarily to be construed as if the original statute has
been repealed, and a new and independent act in the amended form had been adopted in its
stead; or, as frequently stated by the courts, so far as regards any action after the adoption
of the amendment, as if the statute had been originally enacted in its amended form the
amendment becomes a part of the original statute as if it had always been contained therein,
unless such amendment involves the abrogation of contractual relations between the state
and others. Where an amendment leaves certain portions of the original act unchanged, such
portions are continued in force, with the same meaning and effect they had before the
amendment. So where an amendatory act provides that an existing statute shall be amended
to read as recited in the amendatory act, such portions of the existing law as are retained,
either literally or substantially, are regarded as a continuation of the existing law, and not as
a new enactment." (59 C. J., 1096, 1097.)
We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands and article
80 as amended. There is no incompatibility between granting accused of the ages of 15 to 18
a privileged mitigating circumstance and fixing at 16 the maximum age of persons who are to
be placed in a reformatory institution. In other words, there is no inconsistency between
sending defendants of certain ages to prison and giving them a penalty lower than the
imposable one on adults under the same or similar circumstances. Let it be remember that
the privilege of article 68, supra, is not by its nature inherent in age but purely statutory and
conventional, and that this privilege is granted adult offenders under given conditions.
At least there is no clear intention on the part of the Congress to amend article 68. Indeed
the rational presumption is that if there had been such an intention the lawmakers should
have said so expressly, instead of leaving the change to inference.
One other rule of interpretation that quarrels with the theory of implied repeal or
amendment is that penal law is to be construed, in case of doubt, strictly against the state.
"Criminal and penal statutes must be strictly construed, that is, they cannot be enlarged or
extended by intendment, implication, or by any equitable considerations. In other words, the
language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into
effect the general purpose for which the statute was enacted. Only those persons, offenses,
and penalties, clearly included, beyond any reasonable doubt, will be considered within the
statute's operation. They must come clearly within both the spirit and the letter of the
statute, and where there is any reasonable doubt, it must be resolved in favor of the person
accused of violating the statute; that is, all questions in doubt will be resolved in favor of
those from whom the penalty is sought." (Statutory Construction, Crawford, pp. 460-462.)
The offense charged in the information of which the appellant was found guilty is punishable
under article 294, case No. 5, of the Revised Penal Code, as amended by section 6 of Republic
Act No. 18, with prision correccional in its maximum period to prision mayor in its medium
period. The penalty one degree lower than this is arresto mayor in its maximum period to
prision correccional in its medium period. There being no modifying circumstance, the
appropriate penalty in the present case is from 6 months and 1 day of arresto mayor to 2
years and 4 months of prision correccional. Being entitled to an indeterminate penalty as
provided in section 1 of Act No. L-4103 as amended, the accused should be, and he is hereby
sentenced to imprisonment of not less than 4 months of arresto mayor and not more than 2
years and 4 months of prision correccional. In all other respect the appealed judgment is
affirmed. The appellant will pay the costs of this appeal.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
April 12, 1950
TUASON, J.:
This is a motion for reconsideration of our decision.
The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2) of the
Revised Penal code "complement each other;" that "the application of article 68 takes place
only when the court has to render judgment and impose a penalty upon a minor who has
been proceeded against in accordance with article 80 and who had misbehaved or is found
incorrigible," and that "article 80 must be applied first before article 68 can come into
operation, and the court can not apply the latter article in total disregard of the former." In
short, as we infer from this line of reasoning, what article 80 does not touch, article 68 can
not touch.
We do not think the premise and conclusion of the motion are correct. There seems to be a
confusion of ideas.
It may do us well to make brief review of the legislation, past and present, relative to juvenile
offenders and dissect and analyze its various provisions and the differences between them
and the role assigned to each. .
Article 68 of the Revised Penal code provides:.
Penalty to be imposed upon a person under eighteen years of age. — When the
offender is a minor under eighteen years and his case is one coming under the
provisions of the paragraph next to the last of article 80 of this Code, the following
rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted
from liability by reason of the court having declared that he acted with
discernment, a discretionary penalty shall be imposed, but always lower by two
degrees at least than that prescribed by law for the crime which he committed.
2. Upon a person over fifteen and under eighteen years of the penalty next lower
than that prescribed by law shall be imposed but always in the proper period.
Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the Spanish
Penal Code.
Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has become
in the new code article 80, the first paragraph of which provides that "whenever a minor
under 18 years of age, of either sex, be accused of a crime, the court . . . shall commit such
minor to the custody or care of a public or private, benevolent or charitable, institution, etc."
And in the paragraph immediately preceding the last, it is further provided that "In case the
minor fails to behave properly or to comply with the regulation of the institution to which he
has been committed, or with the conditions imposed upon him when he was committed to
the care of a responsible person, or in case he should be found incorrigible or his continued
stay in such institution should be inadvisable, he shall be returned to the court in order that
the same may render the judgment corresponding to the crime committed by him."
The latest legislation on the subject was Republic Act No. 47, which amended article 80 of
the Revised Penal Code so as to reduce to below 16 the age of minors coming within its
purview.
A close examination of articles 68 and 80 will disclose that article 68, according to its main
paragraph, is to lay off and watch while the minor is in the hands of a charitable institution or
person mentioned in article 80 trying to reform him or her. This has to be so because article
68 is a rule for the application of penalties, and there is no penalty when there is no
judgment when the delinquent is in Welfareville or other place of similar character or
entrusted to the care of a private person. However, if and when the minor turns out to be
hopeless or incorrigible, he is returned to the proper court and the court passes sentence on
him or her. In other words, article 80 withdraws, as it were, and sub-paragraph 1 and 2, as
the case maybe, of article 68 takes control.
From this it will be seen that article 68 is not dependent on article 80, nor do these articles
complement each other if by complement is meant that they are two mutually completing
parts so that article 68 could not stand without article 80. It is more appropriate to say that
article 68 merely adjusts itself to article 80 but is, in all other respects, self-sufficient and
independent of the latter. Parts of one system of penology and working in coordination with
each other, they pursue different ends. It is to be noticed that article 68 falls under section 2
of Chapter IV entitled "Application of Penalties," while article 80 comes under section 1 of
Chapter V entitled "Execution and Service of Penalties." Two different subjects, these.
It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the Revised Penal
Code do not function at the same time and are designed for different purposes. Each has its
assigned, separate sphere of action without in any way intermingling with the other. When
article 80 operates, article 68 keeps out of the way; article 68 steps in when article 80 steps
out.
While a minor is in the process of being reformed he is, in a manner of speaking, in an
intermediate or indeterminate state, neither in prison nor free. Through repentance and by
observing good conduct, he is rewarded with freedom, released upon reaching the age of
majority or before, but if he shows no promise of turning a new leaf, Bilibid claims him.
It is the minors so situated; it is selection of two should be committed to are formatory
school or to the custody of a private person with which article 80 has to do, and no more.
Article 80 does not concern itself with what should be done with minors when they are
consigned to jail because of misbehavior; much less is it concerned over minors who, after
the passage of Republic Act No. 47, are condemned to prison without having been under the
custody of a benevolent institution or private person like youths between 16 and 18. On the
other hand, article 68 is intended for minors who are sent to jail, a matter foreign to the
province of article 80.
To press the argument further, article 85 of the original Penal Code conferred upon minors
under 18 the right to a penalty. Then came the Juvenile Delinquency Act giving additional
concession to juvenile delinquents. When, later, Republic Act No. 47 amended article 80 so
as to eliminate from its beneficent provisions minor of the age of 16 or over and under 18,
the logical effect of the amendment can no other than to correspondingly reduce the age of
minors regarding whom the suspensory inhibition on article 68 is to be confined. Only to the
extent and within the limits that article 80 applies is article 68 bound to defer to that article.
Where article 80 does not apply article 68 is supreme. When article 80 says that it will deal
only with minors below 16, it relinquishes authority over minors above that age in favor of
article 68. When and if article 80 should by amendment further reduce the age to 15, to that
extent the operation of article 68 will be correspondingly enlarged.
In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors under
16, had totally abolished the scheme of juvenile reformation, sub-paragraphs 1 and 2 of
article 68 of the Revised Penal Code would, in our opinion, remain intact, with the only
difference that, as before, they would have full sway, unhampered by any consideration of
suspended judgment. The predecessor of article 68 was in the original Penal Code since that
code was put in force in Spain in 1870 and in the Philippines in 1884, long before the idea
embodied in article 80 was conceived. Before the Revised Penal Code went into effect, article
85 of the old Penal Code and the Juvenile Delinquency Act worked in the manner herein set
forth although there was not any express provision coordinating their operation. It can safely
be said that the main paragraph of article 68 was inserted merely to explain in clear and
express terms when it should stand aloof and when it should play its role. The Revised Penal
Code merely states the obvious as befits a scientific system of law.
In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal Code by
reducing the age of persons who may be placed on probation under that article, the
amendment did not change in any form or manner the degree of punishment that should be
meted out to those who are to be committed to jail or how they are to treated. After the
minor is turned over to the court for sentence, article 80 ceases to have any interest in him
or her. In saying that the 16-and 18-year old should no longer be given a trial or placed on
probation in a reformatory institution but should go straight to prison upon conviction,
Republic Act No. 47 does not, by implication or otherwise, connote that such minors should
also be deprived of a reduced penalty. In no standard of statutory construction is there
support for the proposition that the mitigating circumstance which minors between 16 and
18 enjoyed before Republic Act No. 47 came into being, notwithstanding the fact that they
had shown evidence of incorrigibility, should be denied them now for no other reason than
that the right to be committed to a reformatory school has been taken away from them; now
that they are confined in jail without having committed any fault other than the crime for
which they were prosecuted in the first instance.
Let it be remembered that by virtue of the amendment minors between 16 and 18 do not
now come under the provisions of the paragraph next to the last of article 80.
Of course, the effect of a law amendment would different if the amendatory law had
absorbed the law which it had amended. In that case, the original law become part and
parcel of the new law, with the result that if the amendatory law be later repealed, both that
law and the law which it had superseded or amended would be considered abrogated. There
was no law of its own force could survive. But, as we have indicated, article 68 as well as its
predecessor is an independent provision and has not been merged with article 80 or any
other article of the Revised Penal code. It is an independent provision inoperative only during
the suspension of the sentence but possessing all the vigor which article 85 of Spanish Code
had, when the minors are sentenced to jail.
In the decision sought to be reconsidered, we emphasize the rule of statutory construction to
the effect that all parts of a statute are to be harmonized and reconciled so that effect may
be given to each and every part thereof, and that conflicting intentions in the same statute
are never to be supposed or so regarded, unless forced upon the court by an unambiguous
language. (59 C. J., 999.) The motion for reconsideration has not pointed to any conflict, and
we can not find any, between the retention of the privileged or special mitigating
circumstance in favor of minors below 18 and over 16 and the fact that such minors are not
entitled to the benefits of article 80 under any circumstances. The motion for reconsideration
is conspicuous for its silence on any incongruity or absurdity that might result from our ruling
on the scope and extent of Republic Act No. 47.
The sole consideration that might commend itself in favor of the Government's position is
the general welfare. For the good of society it may have been better if Republic Act No. 47
had amended articles 13 and 68 also by correspondingly reducing the age of accused minors
entitled to a mitigating circumstance by reason of age. But it is write to say that we are not
authorized to insert into a law what we think should be in it or to supply what we think the
legislature would have supplied if its attention had been called to the omission. This is
specially true in penal legislation which, as we have repeatedly stressed in our decision, has
to be construed strictly. But there is not even room for construction in this case. The
preamble or explanatory note to Republic Act No. 47 can not be used as basis for giving it an
meaning not apparent on its face. A preamble or explanatory not is resorted to only for
clarification in cases of doubt. There is no ambiguity in Republic Act No. 47.
The motion and the request to set it for oral argument are denied.
Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, Reyes and Torres, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38725 October 31, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
PEDRO MANABA, defendant-appellant.
Jose Ma. Cavanna for appellant.
Office of the Solicitor-General Hilado for appellee.
VICKERS, J.:
This is an appeal from a decision of Judge Eulalio Garcia in this Court of First Instance of
Oriental Negros in criminal case No. 1827 dated November 15, 1932, finding the defendant
guilty of rape and sentencing him to suffer seventeen years and four months of reclusion
temporal, and the accessory penalties of the law, to indemnify the offended party, Celestina
Adapon, in the amount of P500, to maintain the offspring, if any, at P5 a month until said
offspring should become of age, and to pay the costs.
The defendant appealed to this court, and his attorney de oficio now makes the following
assignments of error:
1. El juzgado a quo erro al no estimar en favor del acusado apelante la defensa de
double jeopardy o legal jeopardy que ha interpuesto.
2. El Juzgado a quo erro al no declarar insuficientes las pruebas de identificacion
del acusado apelante.
3. El Juzgado a quo tambien erro al pasar por alto las incoherencias de los testigos
de la acusacion y al no declarar que no se ha establecido fuera de toda duda la
responsabilidad del apelante.
4. El Juzgado a quo erro al condenar al acusado apelante por el delito de violacion y
al no acceder a su mocion de nueva vista.
It appears that on May 10, 1932, the chief of police of Dumaguete subscribed and swore to a
criminal complaint wherein he charged Pedro Manaba with the crime of rape, committed on
the person of Celestina Adapon. This complaint was filed with the justice of the peace of
Dumaguete on June 1, 1932 and in due course the case reached the Court of First Instance.
The accused was tried and convicted, but on motion of the attorney for the defendant the
judgment was set aside and the case dismissed on the ground that the court had no
jurisdiction over the person of the defendant or the subject matter of the action, because the
complaint had not been filed by the offended party, but by the chief of police (criminal case
No. 1801).
On August 17, 1932, the offended girl subscribed and swore to a complaint charging the
defendant with the crime of rape. This complaint was filed in the Court of First Instance
(criminal case No. 1872), but was referred to the justice of the peace of Dumaguete for
preliminary investigation. The defendant waived his right to the preliminary investigation,
but asked for the dismissal of the complaint on the ground that he had previously been
placed in jeopardy for the same offense. This motion was denied by the justice of the peace,
and the case was remanded to the Court of First Instance, where the provincial fiscal in an
information charged the defendant with having committed the crime of rape as
follows:1awphil.net
Que en o hacia la noche del dia 9 de mayo de 1932, en el Municipio de Dumaguete,
Provincia de Negros Oriental, Islas Filipinas, y dentro de la jurisdiccion de este
Juzgado. el referido acusado Pedro Manaba, aprovechandose de la oscuridad de la
noche y mediante fuerza, violencia e intimidacion, voluntaria, ilegal y
criminalmente yacio y tuvo acceso carnal con una niña llamada Celestina Adapon,
contra la voluntad de esta. El acusado Pedro Manaba ya ha sido convicto por
Juzgado competente y en sentencia firme por este mismo delito de violacion.
Hecho cometido con infraccion de la ley.
The defendant renewed his motion for dismissal in the case on the ground of double
jeopardy, but his motion was denied; and upon the termination of the trial the defendant
was found guilty and sentenced as hereinabove stated.
Whether the defendant was placed in jeopardy for the second time or not when he was tried
in the present case depends on whether or not he was tried on a valid complaint in the first
case. The offense in question was committed on May 9, 1932, or subsequent to the date
when the Revised Penal Code became effective.
The third paragraph of the article 344 of the Revised Penal Code, which relates to the
prosecution of the crimes of adultery, concubinage, seduction, rape and acts of
lasciviousness reads as follows:
The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be
prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly
pardoned by the above-named persons, as the case may be.
The Spanish text of this paragraph is as follows:
 Tampoco puede procederse por causa de estupro, rapto, violacion o abusos
deshonestos, sino en virtud de denuncia de la parte agraviada, o de sus padres, o
abuelos o tutor, ni despues de haberse otorgado al ofensor, perdon expreso por
dicha partes, segun los casos.

It will be observed that the Spanish equivalent of the word "filed" is not found in the Spanish
text, which is controlling, as it was the Spanish text of the Revised Penal Code that was
approved by the Legislature.

The first complaint filed against the defendant was signed and sworn to by the chief of police
of Dumaguete. As it was not the complaint of the offended party, it was not a valid complaint
in accordance with the law. The judgment of the court was therefore void for lack of
jurisdiction over the subject matter, and the defendant was never in jeopardy.

It might be observed in this connection that the judgment was set aside and the case
dismissed on the motion of defendant's attorney, who subsequently set up the plea of
double jeopardy in the present case.

The other assignments of error relate to the sufficiency of the evidence, which in our opinion
fully sustains the findings of the trial judge.

The recommendation of the Solicitor-General is erroneous in several respects, chiefly due to

the fact that it is based on the decision of July 30, 1932 that was set aside, and not on the
decision now under consideration. The accused should not be ordered to acknowledge the
offspring, if should there be any, because the record shows that the accused is a married
man.

It appears that the lower court should have taken into consideration the aggravating
circumstances of nocturnity. The defendant is therefore sentenced to suffer seventeen years,
four months, and one day of reclusion temporal, to indemnify the offended party, Celestina
Adapon, in the sum of P500, and to support the offspring, if any. As thus modified, the
decision appealed from is affirmed, with the costs of both instances against the appellant.
 SECOND DIVISION
G.R. No. 138962 October 4, 2002
PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners,
vs.
HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City,
People of the Philippines and I.C. Construction, Inc., respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to
annul the following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999,
rendered by the Court of Appeals in CA-G.R. SP No. 46845;1 (2) Decision dated September 10,
1997 and the Order dated January 28, 1998 issued by the Regional Trial Court of Quezon City
(Branch 96) in Criminal Cases Nos. Q-97-70428 and Q-97-70429;2 and (3) Decision dated
December 16, 1996 of the Metropolitan Trial Court of Quezon City (Branch 38) in Criminal
Cases Nos. 38-0130 and 38-0131.3
The facts are as follows:
Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential
Decree No. 772 or the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz,
appealed to the RTC of Quezon City (Branch 96). Their conviction was affirmed in toto by the
RTC in its decision dated September 10, 1997. Pending resolution of their motion for
reconsideration, however, Republic Act No. 8368, "An Act Repealing Presidential Decree No.
772, entitled ‘Penalizing Squatting and Other Similar Acts’" was enacted.
In its Order, dated January 28, 1998, the RTC ruled that only petitioners’ criminal convictions
were extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners’ illegally
constructed house and improvements, shall remain executory against them.4
On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due
course to the petition per its Decision, dated April 30, 1999.5 Petitioners’ motion for
reconsideration was likewise denied by the CA in its Resolution dated June 9, 1999.6
Hence, the present recourse taken by petitioners, raising the following issues:
"1. That petitioners, being charged with Violation of Presidential Decree No. 772,
the express repeal of said decree absolves the petitioners of any criminal or civil
liability;
"2. That public respondent erred in holding that ‘the civil aspect of the judgment
rendered x x x shall be executory against the accused; and
"3. That the Honorable Court of Appeals, in affirming the Order of the Regional
Trial Court of Quezon City (Branch 96), dated June 9, 1999, grossly erred in ignoring
applicable laws and jurisprudence."7
Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of
both the criminal and civil aspects of the crime. Private respondent, however, insists that
public respondents were correct in ruling that only the criminal liability was absolved and the
civil liability remains inasmuch as it was not extinguished in accordance with Article 113 of
the Revised Penal Code, which reads:
"ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability
as provided in the next preceding article, the offender shall continue to be obliged to satisfy
the civil liability resulting from the crime committed by him, notwithstanding the fact that he
has served his sentence consisting of deprivation of liberty or other rights, or has not been
required to serve the same by reason of amnesty, pardon, commutation of sentence or any
other reason."
In its Motion to Deny Due Course, private respondent also argues that the petition should
now be denied as its title to the land subject of this case has already been adjudged in its
favor. 8
In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees
with petitioners that both the criminal and civil liability were rendered extinct with the repeal
of P.D. 772, and recommended that the assailed issuances be reversed and set aside.
We find the petition to be meritorious.
Republic Act No. 8368, otherwise known as the "Anti-Squatting Law Repeal Act of 1997,"
provides:
"SECTION 1. Title. -- This Act shall be known as the ‘Anti-Squatting Law Repeal Act
of 1997.’
"SEC. 2. Repeal. -- Presidential Decree No. 772, entitled ‘Penalizing Squatting and
Other Similar Acts’ is hereby repealed.
"SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of
Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.
"SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to
nullify, eliminate or diminish in any way Section 27 of Republic Act No. 7279 or any
of its provisions relative to sanctions against professional squatters and squatting
syndicates.
 "SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication and, cases for Forcible Entry and Unlawful Detainer under the Rules of Court,24 as well as civil
in two (2) newspapers of national circulation. liability for Damages under the Civil Code.

"Approved, October 27, 1997."9
The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite
and absolute. As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be
criminal under R.A. 8368, and the previous offense is obliterated. 10
In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its
authority to punish a person charged with violation of the old law prior to its repeal. This is
because an unqualified repeal of a penal law constitutes a legislative act of rendering legal
what had been previously declared as illegal, such that the offense no longer exists and it is
as if the person who committed it never did so.11 Specially so, as in the present case where it
is unconditionally stated in Section 3 of R.A. No. 8368 that: "(A)ll pending cases under the
provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this
Act."12 Obviously, it was the clear intent of the law to decriminalize or do away with the
crime of squatting. Hence, there being no criminal liability, there is likewise no civil liability
because the latter is rooted in the former. Where an act or omission is not a crime, no person
can be held liable for such act or omission. There being no delict, logically, civil liability ex
delicto is out of the question. 13
Considering that prosecution for criminal as well as civil liability under P.D. 772 has been
rendered nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal
Cases Nos. Q-97-70428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130
and 38-0131 in the MTC filed against petitioners should be dismissed.
WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30,
1999 of the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new
judgment is hereby entered modifying the Decision dated September 10, 1997 of the
Regional Trial Court of Quezon City (Branch 96) in Criminal Cases No. Q-97-70428 and Q-97-
70429 and the Decision dated December 16, 1996 issued by the Metropolitan Trial Court of
Quezon City (Branch 38), to the effect that the dismissal of the aforementioned criminal
cases likewise include the dismissal of the civil aspects thereof, without prejudice to the filing
of civil and/or criminal actions under the prevailing laws.

In fact, in People v. Leachon, Jr.14 we implicitly recognized the unconditional repeal of P.D.
772 by R.A. 8368 when we ordered the dismissal of the petition filed in said case, without
any qualification whatsoever, because of the enactment of R.A. 8368, viz.:

"But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot
now prosper because on October 27, 1997, Republic Act No. 8368, entitled ‘An Act Repealing
Presidential Decree No. 772 Entitled ‘Penalizing Squatting and Other Similar Acts’ was
"enacted. Section 3 of the said Act provides that ‘all pending cases under the provisions of
Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.’"15

This is not to say, however, that people now have the unbridled license to illegally occupy
lands they do not own. R.A. No. 836816 was unanimously approved by the members of the
Senate of the Philippines present on its third reading.17 The legislature considered it a major
piece of legislation on the country’s anti-poverty program18 as it sought to confront the
perennial problem of poverty at its root, abolish an otherwise inutile and oppressive law, and
pave the way for a genuine urban housing and land reform program. Senate records reveal
that it is the manifest intent of the authors of R.A. 8368 to decriminalize squatting but does
not encourage or protect acts of squatting on somebody else’s land.19 The law is not
intended to compromise the property rights of legitimate landowners.20 Recourse may be
had in cases of violation of their property rights, such as those provided for in Republic Act
No. 7279 or the Urban Development and Housing Act, penalizing professional squatters and
squatting syndicates as defined therein, who commit nefarious and illegal activities21; the
Revised Penal Code providing for criminal prosecution in cases of Trespass to Property,22
Occupation of Real Property or Usurpation of Real Rights in Property,23 and similar violations,
 SECOND DIVISION
G.R. No. 125359 September 4, 2001
ROBERTO S. BENEDICTO and HECTOR T. RIVERA, petitioners,
vs.
THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR., PRESIDING JUDGE, REGIONAL
TRIAL COURT OF MANILA, BRANCH 26, and PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
Assailed in this petition is the consolidated decision rendered on May 23, 1996, by the Court
of Appeals in CA-G.R. SP No. 35928 and CA-G.R. SP No. 35719. CA-G.R. SP No. 35928 had
affirmed the order dated September 6, 1994, of the Regional Trial Court, Manila, Branch 26,
insofar as it denied petitioners’ respective Motions to Quash the Informations in twenty-five
(25) criminal cases for violation of Central Bank Circular No. 960. Therein included were
informations involving: (a) consolidated Criminal Cases Nos. 91-101879 to 91-101883 filed
against Mrs. Imelda R. Marcos, Roberto S. Benedicto, and Hector T. Rivera; (b) consolidated
Criminal Cases Nos. 91-101884 to 91-101892 filed against Mrs. Marcos and Benedicto; and
(c) Criminal Cases Nos. 92-101959 to 92-101969 also against Mrs. Marcos and Benedicto.
Note, however, that the Court of Appeals already dismissed Criminal Case No. 91-101884.
The factual antecedents of the instant petition are as follows:
On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and Rivera were indicted
for violation of Section 10 of Circular No. 9601 relation to Section 342 of the Central Bank Act
(Republic Act No. 265, as amended) in five Informations filed with the Regional Trial Court of
Manila. Docketed as Criminal Cases Nos. 91-101879 to 91-101883, the charge sheets alleged
that the trio failed to submit reports of their foreign exchange earnings from abroad and/or
failed to register with the Foreign Exchange Department of the Central Bank within the
period mandated by Circular No. 960. Said Circular prohibited natural and juridical persons
from maintaining foreign exchange accounts abroad without prior authorization from the
Central Bank.3 It also required all residents of the Philippines who habitually earned or
received foreign currencies from invisibles, either locally or abroad, to report such earnings
or receipts to the Central Bank. Violations of the Circular were punishable as a criminal
offense under Section 34 of the Central Bank Act.
That same day, nine additional Informations charging Mrs. Marcos and Benedicto with the
same offense, but involving different accounts, were filed with the Manila RTC, which
docketed these as Criminal Cases Nos. 91-101884 to 91-101892. The accusatory portion of
the charge sheet in Criminal Case No. 91-101888 reads:
That from September 1, 1983 up to 1987, both dates inclusive, and for sometime
thereafter, both accused, conspiring and confederating with each other and with
the late President Ferdinand E. Marcos, all residents of Manila, Philippines, and
within the jurisdiction of this Honorable Court, did then and there wilfully,
unlawfully and feloniously fail to submit reports in the prescribed form and/or
register with the Foreign Exchange Department of the Central Bank within 90 days
from October 21, 1983 as required of them being residents habitually/customarily
earning, acquiring or receiving foreign exchange from whatever source or from
invisibles locally or from abroad, despite the fact they actually earned interests
regularly every six (6) months for the first two years and then quarterly thereafter
for their investment of $50-million, later reduced to $25-million in December 1985,
in Philippine-issued dollar denominated treasury notes with floating rates and in
bearer form, in the name of Bank Hofmann, AG, Zuring, Switzerland, for the benefit
of Avertina Foundation, their front organization established for economic
advancement purposes with secret foreign exchange account Category (Rubric)
C.A.R. No. 211925-02 in Swiss Credit Bank (also known as SKA) in Zurich,
Switzerland, which earned, acquired or received for the accused Imelda Romualdez
Marcos and her late husband an interest of $2,267,892 as of December 16, 1985
which was remitted to Bank Hofmann, AG, through Citibank, New York, United
States of America, for the credit of said Avertina account on December 19, 1985,
aside from the redemption of $25 million (one-half of the original $50-M) as of
December 16, 1985 and outwardly remitted from the Philippines in the amounts of
$7,495,297.49 and $17,489,062.50 on December 18, 1985 for further investment
outside the Philippine without first complying with the Central Bank
reporting/registering requirements.1âwphi1.nêt
CONTRARY TO LAW.4
The other charge sheets were similarly worded except the days of the commission of the
offenses, the name(s) of the alleged dummy or dummies, the amounts in the foreign
exchange accounts maintained, and the names of the foreign banks where such accounts
were held by the accused.
On January 3, 1992, eleven more Informations accusing Mrs. Marcos and Benedicto of the
same offense, again in relation to different accounts, were filed with the same court,
docketed as Criminal Cases Nos. 92-101959 to 92-101969. The Informations were similarly
worded as the earlier indictments, save for the details as to the dates of the violations of
Circular No. 960, the identities of the dummies used, the balances and sources of the
earnings, and the names of the foreign banks where these accounts were maintained.
All of the aforementioned criminal cases were consolidated before Branch 26 of the said trial
court.
On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were filed, the Central
Bank issued Circular No. 13185 which revised the rules governing non-trade foreign exchange
transactions. It took effect on January 20, 1992.
On August 24, 1992, the Central Bank, pursuant to the government’s policy of further
liberalizing foreign exchange transactions, came out with Circular No. 1356,6 which amended
Circular No. 1318. Circular No. 1353 deleted the requirement of prior Central Bank approval
for foreign exchange-funded expenditures obtained from the banking system.
Both of the aforementioned circulars, however, contained a saving clause, excepting from
their coverage pending criminal actions involving violations of Circular No. 960 and, in the
case of Circular No. 1353, violations of both Circular No. 960 and Circular No. 1318.
On September 19, 1993, the government allowed petitioners Benedicto and Rivera to return
to the Philippines, on condition that they face the various criminal charges instituted against
them, including the dollar-salting cases. Petitioners posted bail in the latter cases.
On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both pleaded not
guilty to the charges of violating Central Bank Circular No. 960. Mrs. Marcos had earlier
entered a similar plea during her arraignment for the same offense on February 12, 1992.
On August 11, 1994, petitioners moved to quash all the Informations filed against them in
Criminal Cases Nos. 91-101879 to 91-101883; 91-101884 to 91-101892, and 91-101959 to 91-
101969. Their motion was grounded on lack of jurisdiction, forum shopping, extinction of
criminal liability with the repeal of Circular No. 960, prescription, exemption from the Central
Bank’s reporting requirement, and the grant of absolute immunity as a result of a
compromise agreement entered into with the government.
On September 6, 1994, the trial court denied petitioners’ motion. A similar motion filed on
May 23, 1994 by Mrs. Marcos seeking to dismiss the dollar-salting cases against her due to
the repeal of Circular No. 960 had earlier been denied by the trial court in its order dated
June 9, 1994. Petitioners then filed a motion for reconsideration, but the trial court likewise
denied this motion on October 18, 1994.
On November 21, 1994, petitioners moved for leave to file a second motion for
reconsideration. The trial court, in its order of November 23, 1994, denied petitioners’
motion and set the consolidated cases for trial on January 5, 1995.
Two separate petitions for certiorari and prohibition, with similar prayers for temporary
restraining orders and/or writs of preliminary injunction, docketed as CA-G.R. SP No. 35719
and CA-G.R. SP No. 35928, were respectively filed by Mrs. Marcos and petitioners with the
Court of Appeals. Finding that both cases involved violations of Central Bank Circular No. 960,
the appellate court consolidated the two cases.
On May 23, 1996, the Court of Appeals disposed of the consolidated cases as follows:
WHEREFORE, finding no grave abuse of discretion on the part of respondent Judge
in denying petitioners’ respective Motions to Quash, except that with respect to
Criminal Case No. 91-101884, the instant petitions are hereby DISMISSED for lack
of merit. The assailed September 6, 1994 Order, in so far as it denied the Motion to
Quash Criminal Case No. 91-101884 is hereby nullified and set aside, and said case
is hereby dismissed. Costs against petitioners.
SO ORDERED.7
Dissatisfied with the said decision of the court a quo, except with respect to the portion
ordering the dismissal of Criminal Case No. 91-101884, petitioners filed the instant petition,
attributing the following errors to the appellate court:
THAT THE COURT ERRED IN NOT FINDING THAT THE INFORMATIONS/CASES FILED
AGAINST PETITIONERS-APPELLANTS ARE QUASHABLE BASED ON THE FOLLOWING
GROUNDS:
(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID PRELIMINARY
INVESTIGATION
(B) EXTINCTION OF CRIMINAL LIABILITY
1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO. 153;
2) REPEAL OF R.A. 265 BY R.A. 76538
(C) PRESCRIPTION
(D) EXEMPTION FROM CB REPORTING REQUIREMENT
GRANT OF ABSOLUTE IMMUNITY.9
Simply stated, the issues for our resolution are:
(1) Did the Court of Appeals err in denying the Motion to Quash for lack of
jurisdiction on the part of the trial court, forum shopping by the prosecution, and
absence of a valid preliminary investigation?
(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265 by
Circular No. 1353 and Republic Act No. 7653 respectively, extinguish the criminal
liability of petitioners?
(3) Had the criminal cases in violation of Circular No. 960 already prescribed?
(4) Were petitioners exempted from the application and coverage of Circular No.
960?
(5) Were petitioners’ alleged violations of Circular No. 960 covered by the absolute
immunity granted in the Compromise Agreement of November 3, 1990?
On the first issue, petitioners assail the jurisdiction of the Regional Trial Court. They aver that
the dollar-salting charges filed against them were violations of the Anti-Graft Law or Republic
Act No. 3019, and the Sandiganbayan has original and exclusive jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal case is determined by the
law in force at the time the action is instituted.10 The 25 cases were filed in 1991-92. The
applicable law on jurisdiction then was Presidential Decree 1601.11 Under P.D. No. 1606,
offenses punishable by imprisonment of not more than six years fall within the jurisdiction of
the regular trial courts, not the Sandiganbayan.12
In the instant case, all the Informations are for violations of Circular No. 960 in relation to
Section 34 of the Central Bank Act and not, as petitioners insist, for transgressions of
Republic Act No. 3019. Pursuant to Section 34 of Republic Act No. 265, violations of Circular
No. 960 are punishable by imprisonment of not more than five years and a fine of not more
than P20,000.00. Since under P.D. No. 1606 the Sandiganbayan has no jurisdiction to try
criminal cases where the imposable penalty is less than six years of imprisonment, the cases
against petitioners for violations of Circular No. 960 are, therefore cognizable by the trial
court. No error may thus be charged to the Court of Appeals when it held that the RTC of
Manila had jurisdiction to hear and try the dollar-salting cases.
Still on the first issue, petitioners next contend that the filing of the cases for violations of
Circular No. 960 before the RTC of Manila Constitutes forum shopping. Petitioners argue that
the prosecution, in an attempt to seek a favorable verdict from more than one tribunal, filed
separate cases involving virtually the same offenses before the regular trial courts and the
Sandiganbayan. They fault the prosecution with splitting the cases. Petitioners maintain that
while the RTC cases refer only to the failure to report interest earnings on Treasury Notes,
the Sandiganbayan cases seek to penalize the act of receiving the same interest earnings on
Treasury Notes in violation of the Anti-Graft Law’s provisions on prohibited transactions.
Petitioners aver that the violation of Circular No. 960 is but an element of the offense of
prohibited transactions punished under Republic Act No. 3019 and should, thus, be deemed
absorbed by the prohibited transactions cases pending before the Sandiganbayan.
For the charge of forum shopping to prosper, there must exist between an action pending in
one court and another action pending in one court and another action before another court:
(a) identity of parties, or at least such parties as represent the same interests in both actions;
(b) identity of rights asserted and relief prayed for, the relief being founded on the same
facts; and (c) the identity of the two preceding particulars is such that any judgment
rendered in the other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.13 Here, we find that the single act of receiving
unreported interest earnings on Treasury Notes held abroad constitutes an offense against
two or more distinct and unrelated laws, Circular No. 960 and R.A. 3019. Said laws define
distinct offenses, penalize different acts, and can be applied independently.14 Hence, no fault
lies at the prosecution’s door for having instituted separate cases before separate tribunals
involving the same subject matter.
With respect to the RTC cases, the receipt of the interest earnings violate Circular No. 960 in
relation to Republic Act No. 265 because the same was unreported to the Central Bank. The
act to be penalized here is the failure to report the interest earnings from the foreign
exchange accounts to the proper authority. As to the anti-graft cases before the
Sandiganbayan involving the same interest earnings from the same foreign exchange
accounts, the receipt of the interest earnings transgresses Republic Act No. 3019 because the
act of receiving such interest is a prohibited transaction prejudicial to the government. What
the State seeks to punish in these anti-graft cases is the prohibited receipt of the interest
earnings. In sum, there is no identity of offenses charged, and prosecution under one law is
not an obstacle to a prosecution under the other law. There is no forum shopping.
Finally, on the first issue, petitioners contend that the preliminary investigation by the
Department of Justice was invalid and in violation of their rights to due process. Petitioners
argue that government’s ban on their travel effectively prevented them from returning home
and personally appearing at the preliminary investigation. Benedicto and Rivera further point
out that the joint preliminary investigation by the Department of Justice, resulted to the
charges in one set of cases before the Sandiganbayan for violations of Republic Act No. 3019
and another set before the RTC for violation of Circular No. 960.
Preliminary investigation is not part of the due process guaranteed by the Constitution.15 It is
an inquiry to determine whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is probably guilty thereof.16 Instead,
the right to a preliminary investigation is personal. It is afforded to the accused by statute,
and can be waived, either expressly or by implication.17 The waiver extends to any
irregularity in the preliminary investigation, where one was conducted.
The petition in the present case contains the following admissions:
1. Allowed to return to the Philippines on September 19, 1993 … on the condition
that he face the criminal charges pending in courts, petitioner-appellant Benedicto,
joined by his co-petitioner Rivera, lost no time in attending to the pending criminal
charges by posting bail in the above-mentioned cases.
2. Not having been afforded a real opportunity of attending the preliminary
investigation because of their forced absence from the Philippines then,
petitioners-appellants invoked their right to due process thru motions for
preliminary investigation … Upon denial of their demands for preliminary
investigation, the petitioners intended to elevate the matter to the Honorable
Court of Appeals and actually caused the filing of a petition for
certiorari/prohibition sometime before their arraignment but immediately caused
the withdrawal thereof … in view of the prosecution’s willingness to go to pre-trial
wherein petitioner would be allowed access to the records of preliminary
investigation which they could use for purposes of filing a motion to quash if
warranted.
3. Thus, instead of remanding the Informations to the Department of Justice …
respondent Judge set the case for pre-trial in order to afford all the accused access
to the records of prosecution…
xxx
5. On the basis of disclosures at the pre-trial, the petitioners-appellants Benedicto
and Rivera moved for the quashing of the informations/cases…18
The foregoing admissions lead us to conclude that petitioners have expressly waived their
right to question any supposed irregularity in the preliminary investigation or to ask for a
new preliminary investigation. Petitioners, in the above excerpts from this petition, admit
posting bail immediately following their return to the country, entered their respective pleas
to the charges, and filed various motions and pleadings. By so doing, without simultaneously
demanding a proper preliminary investigation, they have waived any and all irregularities in
the conduct of a preliminary investigation.19 The trial court did not err in denying the motion
to quash the informations on the ground of want of or improperly conducted preliminary
investigation. The absence of a preliminary investigation is not a ground to quash the
information.20
On the second issue, petitioners contend that they are being prosecuted for acts punishable
under laws that have already been repealed. They point to the express repeal of Central Bank
Circular No. 960 by Circular Nos. 1318 and 1353 as well as the express repeal of Republic Act
No. 265 by Republic Act No. 7653. Petitioners, relying on Article 22 of the Revised Penal
Code,21 contend that repeal has the effect of extinguishing the right to prosecute or punish
the offense committed under the old laws.22
As a rule, an absolute repeal of a penal law has the effect of depriving a court of its authority
to punish a person charged with violation of the old law prior to its repeal.23 This is because
an unqualified repeal of a penal law constitutes a legislative act of rendering legal what had
been previously declared as illegal, such that the offense no longer exists and it is as if the
person who committed it never did so. There are, however, exceptions to the rule. One is the
inclusion of a saving clause in the repealing statute that provides that the repeal shall have
no effect on pending actions.24 Another exception is where the repealing act reenacts the
former statute and punishes the act previously penalized under the old law. In such instance,
the act committed before the reenactment continues to be an offense in the statute books
and pending cases are not affected, regardless of whether the new penalty to be imposed is
more favorable to the accused.25
In the instant case, it must be noted that despite the repeal of Circular No. 960, Circular No.
1353 retained the same reportorial requirement for residents receiving earnings or profits
from non-trade foreign exchange transactions.26 Second, even the most cursory glance at the
repealing circulars, Circular Nos. 1318 and 1353 shows that both contain a saving clause,
expressly providing that the repeal of Circular No. 960 shall have no effect on pending actions
for violation of the latter Circular.27 A saving clause operates to except from the effect of the
repealing law what would otherwise be lost under the new law.28 In the present case, the
respective saving clauses of Circular Nos. 1318 and 1353 clearly manifest the intent to
reserve the right of the State to prosecute and punish offenses for violations of the repealed
Circular No. 960, where the cases are either pending or under investigation.
Petitioners, however, insist that the repeal of Republic Act No. 265, particularly Section 34,29
by Republic Act No. 7653, removed the applicability of any special sanction for violations of
any non-trade foreign exchange transactions previously penalized by Circular No. 960.
Petitioners posit that a comparison of the two provisions shows that Section 3630 of Republic
Act No. 7653 neither retained nor reinstated Section 34 of Republic Act No. 265. Since, in
creating the Bangko Sentral ng Pilipinas, Congress did not include in its charter a clause
providing for the application of Section 34 of Republic Act No. 265 to pending cases,
petitioners’ pending dollar-salting cases are now bereft of statutory penalty, the saving
clause in Circular No. 1353 notwithstanding. In other words, absent a provision in Republic
Act No. 7653 expressly reviving the applicability of any penal sanction for the repealed
mandatory foreign exchange reporting regulations formerly required under Circular No. 960,
violations of aforesaid repealed Circular can no longer be prosecuted criminally.
A comparison of the old Central Bank Act and the new Bangko Sentral’s charter repealing the
former show that in consonance with the general objective of the old law and the new law
"to maintain internal and external monetary stability in the Philippines and preserve the
international value of the peso,"31 both the repealed law and the repealing statute contain a
penal cause which sought to penalize in general, violations of the law as well as orders,
instructions, rules, or regulations issued by the Monetary Board. In the case of the Bangko
Sentral, the scope of the penal clause was expanded to include violations of "other pertinent
banking laws enforced or implemented by the Bangko Sentral." In the instant case, the acts
of petitioners sought to be penalized are violations of rules and regulations issued by the
Monetary Board. These acts are proscribed and penalized in the penal clause of the repealed
law and this proviso for proscription and penalty was reenacted in the repealing law. We
find, therefore, that while Section 34 of Republic Act No. 265 was repealed, it was
nonetheless, simultaneously reenacted in Section 36 of Republic Act No. 7653. Where a
clause or provision or a statute for the matter is simultaneously repealed and reenacted,
there is no effect, upon the rights and liabilities which have accrued under the original
statute, since the reenactment, in effect "neutralizes" the repeal and continues the law in
force without interruption.32 The rule applies to penal laws and statutes with penal
provisions. Thus, the repeal of a penal law or provision, under which a person is charged with
violation thereof and its simultaneous reenactment penalizing the same act done by him
under the old law, will neither preclude the accused’s prosecution nor deprive the court of its
jurisdiction to hear and try his case.33 As pointed out earlier, the act penalized before the
reenactment continues to remain an offense and pending cases are unaffected. Therefore,
the repeal of Republic Act No. 265 by Republic Act No. 7653 did not extinguish the criminal
liability of petitioners for transgressions of Circular No. 960 and cannot, under the
circumstances of this case, be made a basis for quashing the indictments against petitioners.
Petitioners, however, point out that Section 36 of Republic Act No. 7653, in reenacting
Section 34 of the old Central Act, increased the penalty for violations of rules and regulations
issued by the Monetary Board. They claim that such increase in the penalty would give
Republic Act No. 7653 an ex post facto application, violating the Bill of Rights.34
Is Section 36 of Republic Act No. 7653 and ex post facto legislation?
An ex post facto law is one which: (1) makes criminal an act done before the passage of the
law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or
makes it greater than it was when committed; (3) changes the punishment and inflicts a
greater punishment than the law annexed to the crime when committed; (4) alters the legal
rules of evidence, and authorizes conviction upon less or different testimony than the law
required at the time of the commission of the offense; (5) assuming to regulate civil rights,
and remedies only, in effect imposes penalty or deprivation of a right for something which
when done was lawful; and (6) deprives a person accused of a crime of some lawful
protection to which he has become entitled such as the protection of a former conviction or
acquittal, or a proclamation of amnesty.35
The test whether a penal law runs afoul of the ex post facto clause of the Constitution is:
Does the law sought to be applied retroactively take "from an accused any right that was
regarded at the time of the adoption of the constitution as vital for the protection of life and
liberty and which he enjoyed at the time of the commission of the offense charged against
him."36
The crucial words in the test are "vital for the protection of life and liberty."37 We find,
however, the test inapplicable to the penal clause of Republic Act No. 7653. Penal laws and
laws which, while not penal in nature, nonetheless have provisions defining offenses and
prescribing penalties for their violation operate prospectively.38 Penal laws cannot be given
retroactive effect, except when they are favorable to the accused. 39 Nowhere in Republic Act
No. 7653, and in particular Section 36, is there any indication that the increased penalties
provided therein were intended to operate retroactively. There is, therefore, no ex post facto
law in this case.
On the third issue, petitioners ask us to note that the dollar interest earnings subject of the
criminal cases instituted against them were remitted to foreign banks on various dates
between 1983 to 1987. They maintain that given the considerable lapse of time from the
dates of the commission of the offenses to the institution of the criminal actions in 1991 and
1992, the State’s right to prosecute them for said offenses has already prescribed. Petitioners
assert that the Court of Appeals erred in computing the prescriptive period from February
1986. Petitioners theorize that since the remittances were made through the Central Bank as
a regulatory authority, the dates of the alleged violations are known, and prescription should
thus be counted from these dates.
In ruling that the dollar-salting cases against petitioners have not yet prescribed, the court a
quo quoted with approval the trial court’s finding that:
[T]he alleged violations of law were discovered only after the EDSA Revolution in
1986 when the dictatorship was toppled down. The date of the discovery of the
offense, therefore, should be the basis in computing the prescriptive period. Since
(the) offenses charged are punishable by imprisonment of not more than five (5)
years, they prescribe in eight (8) years. Thus, only a little more than four (4) years
had elapsed from the date of discovery in 1986 when the cases were filed in
1991.40
The offenses for which petitioners are charged are penalized by Section 34 of Republic Act
No. 265 "by a fine of not more than Twenty Thousand Pesos (P20,000.00) and by
imprisonment of not more than five years." Pursuant to Act No. 3326, which mandates the
periods of prescription for violations of special laws, the prescriptive period for violations of
Circular No. 960 is eight (8) years.41 The period shall commence "to run from the day of the
commission of the violation of the law, and if the same be not known at the time, from the
discovery thereof and institution of judicial proceedings for its investigation and
punishment."42 In the instant case, the indictments against petitioners charged them with
having conspired with the late President Ferdinand E. Marcos in transgressing Circular No.
960. Petitioners’ contention that the dates of the commission of the alleged violations were
known and prescription should be counted from these dates must be viewed in the context
of the political realities then prevailing. Petitioners, as close associates of Mrs. Marcos, were
not only protected from investigation by their influence and connections, but also by the
power and authority of a Chief Executive exercising strong-arm rule. This Court has taken
judicial notice of the fact that Mr. Marcos, his family, relations, and close associates
"resorted to all sorts of clever schemes and manipulations to disguise and hide their illicit
acquisitions."43 In the instant case, prescription cannot, therefore, be made to run from the
dates of the commission of those offenses were not known as of those dates. It was only
after the EDSA Revolution of February, 1986, that the recovery of ill-gotten wealth became a
highly prioritized state policy,44 pursuant to the explicit command of the Provisional
Constitution.45 To ascertain the relevant facts to recover "ill-gotten properties amassed by
the leaders and supporters of the (Marcos) regime"46 various government agencies were
tasked by the Aquino administration to investigate, and as the evidence on hand may reveal,
file and prosecute the proper cases. Applying the presumption "that official duty has been
regularly performed",47 we are more inclined to believe that the violations for which
petitioners are charged were discovered only during the post-February 1986 investigations
and the tolling of the prescriptive period should be counted from the dates of discovery of
their commission. The criminal actions against petitioners, which gave rise to the instant
case, were filed in 1991 and 1992, or well within the eight-year prescriptive period counted
from February 1986.
The fourth issue involves petitioners’ claim that they incurred no criminal liability for
violations of Circular No. 960 since they were exempted from its coverage.
Petitioners postulate that since the purchases of treasury notes were done through the
Central Bank’s Securities Servicing Department and payments of the interest were coursed
through its Securities Servicing Department/Foreign Exchange Department, their filing of
reports would be surplusage, since the requisite information were already with the Central
Bank. Furthermore, they contend that the foreign currency investment accounts in the Swiss
banks were subject to absolute confidentiality as provided for by Republic Act No. 6426,48 as
amended by Presidential Decree Nos. 1035, 1246, and 1453, and fell outside the ambit of the
reporting requirements imposed by Circular No. 960. Petitioners further rely on the
exemption from reporting provided for in Section 10(q),49 Circular No. 960, and the
confidentiality granted to Swiss bank accounts by the laws of Switzerland.
Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts from the
reporting requirement foreign currency eligible for deposit under the Philippine Foreign
Exchange Currency Deposit System, pursuant to Republic Act No. 6426, as amended. But, in
order to avail of the aforesaid exemption, petitioners must show that they fall within its
scope. Petitioners must satisfy the requirements for eligibility imposed by Section 2, Republic
Act No. 6426.50 Not only do we find the record bare of any proof to support petitioners’ claim
of falling within the coverage of Republic Act No. 6426, we likewise find from a reading of
Section 2 of the Foreign Currency Deposit Act that said law is inapplicable to the foreign
currency accounts in question. Section 2, Republic Act No. 6426 speaks of "deposit with such
Philippine banks in good standing, as may…be designated by the Central Bank for the
purpose."51 The criminal cases filed against petitioners for violation of Circular No. 960
involve foreign currency accounts maintained in foreign banks, not Philippine banks. By
invoking the confidentiality guarantees provided for by Swiss banking laws, petitioners admit
such reports made. The rule is that exceptions are strictly construed and apply only so far as
their language fairly warrants, with all doubts being resolved in favor of the general proviso
rather than the exception.52 Hence, petitioners may not claim exemption under Section
10(q).
With respect to the banking laws of Switzerland cited by petitioners, the rule is that
Philippine courts cannot take judicial notice of foreign laws.53 Laws of foreign jurisdictions
must be alleged and proved.54 Petitioners failed to prove the Swiss law relied upon, either by:
(1) an official publication thereof; or (2) a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied by a certification from the
secretary of the Philippine embassy or legation in such country or by the Philippine consul
general, consul, vice-consul, or consular agent stationed in such country, or by any other
authorized officer in the Philippine foreign service assigned to said country that such officer
has custody.55 Absent such evidence, this Court cannot take judicial cognizance of the foreign
law invoked by Benedicto and Rivera.
Anent the fifth issue, petitioners insist that the government granted them absolute immunity
under the Compromise Agreement they entered into with the government on November 3,
1990. Petitioners cite our decision in Republic v. Sandiganbayan, 226 SCRA 314 (1993),
upholding the validity of the said Agreement and directing the various government agencies
to be consistent with it. Benedicto and Rivera now insist that the absolute immunity from
criminal investigation or prosecution granted to petitioner Benedicto, his family, as well as to
officers and employees of firms owned or controlled by Benedicto under the aforesaid
Agreement covers the suits filed for violations of Circular No. 960, which gave rise to the
present case.
The pertinent provisions of the Compromise Agreement read:
WHEREAS, this Compromise Agreement covers the remaining claims and the cases
of the Philippine Government against Roberto S. Benedicto including his associates
and nominees, namely, Julita C. Benedicto, Hector T. Rivera, x x x
WHEREAS, specifically these claims are the subject matter of the following cases
(stress supplied):
1. Sandiganbayan Civil Case No. 9
2. Sandiganbayan Civil Case No. 24
3. Sandiganbayan Civil Case No. 34
4. Tanodbayan (Phil-Asia)
5. PCGG I.S. No. 1.
xxx
WHEREAS, following the termination of the United States and Swiss cases, and also
without admitting the merits of their respective claims and counterclaims presently
involved in uncertain, protracted and expensive litigation, the Republic of the
Philippines, solely motivated by the desire for the immediate accomplishment of its
recovery mission and Mr. Benedicto being interested to lead a peaceful and normal
pursuit of his endeavors, the parties have decided to withdraw and/or dismiss their
mutual claims and counterclaims under the cases pending in the Philippines, earlier
referred to (underscoring supplied);
xxx
II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition of the
Freedom to Travel
a) The Government hereby lifts the sequestrations over the assets listed in Annex
"C" hereof, the same being within the capacity of Mr. Benedicto to acquire from
the exercise of his profession and conduct of business, as well as all the haciendas
listed in his name in Negro Occidental, all of which were inherited by him or
acquired with income from his inheritance…and all the other sequestered assets
that belong to Benedicto and his corporation/nominees which are not listed in
Annex "A" as ceded or to be ceded to the Government.
Provided, however, (that) any asset(s) not otherwise settled or covered by this
Compromise Agreement, hereinafter found and clearly established with finality by
proper competent court as being held by Mr. Roberto S. Benedicto in trust for the
family of the late Ferdinand E. Marcos, shall be returned or surrendered to the
Government for appropriate custody and disposition.
b) The Government hereby extends absolute immunity, as authorized under the
pertinent provisions of Executive Orders Nos. 1, 2, 14 and 14-A, to Benedicto, the
members of his family, officers and employees of his corporations above
mentioned, who are included in past, present and future cases and investigations
of the Philippine Government, such that there shall be no criminal investigation or
prosecution against said persons for acts (or) omissions committed prior to
February 25, 1986, that may be alleged to have violated any laws, including but not
limited to Republic Act No. 3019, in relation to the acquisition of any asset treated,
mentioned or included in this Agreement.lawphil.net
x x x56
In construing contracts, it is important to ascertain the intent of the parties by looking at the
words employed to project their intention. In the instant case, the parties clearly listed and
limited the applicability of the Compromise Agreement to the cases listed or identified
therein. We have ruled in another case involving the same Compromise Agreement that:
 [T]he subject matters of the disputed compromise agreement are Sandiganbayan might be attributable to him in the aforesaid cases are declared extinguished by reason of his
Civil Case No. 0009, Civil Case No. 00234, Civil Case No. 0034, the Phil-Asia case death on May 15, 2000.lawphil.net No pronouncement as to costs.
before the Tanodbayan and PCGG I.S. No. 1. The cases arose from complaints for
reconveyance, reversion, accounting, restitution, and damages against former SO ORDERED.
President Ferdinand E. Marcos, members of his family, and alleged cronies, one of
whom was respondent Roberto S. Benedicto.57

Nowhere is there a mention of the criminal cases filed against petitioners for violations of
Circular No. 960. Conformably with Article 1370 of the Civil Code,58 the Agreement relied
upon by petitioners should include only cases specifically mentioned therein. Applying the
parol evidence rule,59 where the parties have reduced their agreement into writing, the
contents of the writing constitute the sole repository of the terms of the agreement between
the parties.60 Whatever is not found in the text of the Agreement should thus be construed
as waived and abandoned.61 Scrutiny of the Compromise Agreement will reveal that it does
not include all cases filed by the government against Benedicto, his family, and associates.

Additionally, the immunity covers only "criminal investigation or prosecution against said
persons for acts (or) omissions committed prior to February 25, 1986 that may be alleged to
have violated any penal laws, including but not limited to Republic Act No. 3019, in relation
to the acquisition of any asset treated, mentioned, or included in this Agreement." 62 It is only
when the criminal investigation or case involves the acquisition of any ill-gotten wealth
"treated mentioned, or included in this Agreement"63 that petitioners may invoke immunity.
The record is bereft of any showing that the interest earnings from foreign exchange deposits
in banks abroad, which is the subject matter of the present case, are "treated, mentioned, or
included" in the Compromise Agreement. The phraseology of the grant of absolute immunity
in the Agreement precludes us from applying the same to the criminal charges faced by
petitioners for violations of Circular No. 960. A contract cannot be construed to include
matters distinct from those with respect to which the parties intended to contract.64

In sum, we find that no reversible error of law may be attributed to the Court of Appeals in
upholding the orders of the trial court denying petitioners’ Motion to Quash the Informations
in Criminal Case Nos. 91-101879 to 91-101883, 91-101884 to 91-101892, and 92-101959 to
92-101969. In our view, none of the grounds provided for in the Rules of Court65 upon which
petitioners rely, finds applications in this case.

On final matter. During the pendency of this petition, counsel for petitioner Roberto S.
Benedicto gave formal notice to the Court that said petitioner died on May 15, 2000. The
death of an accused prior to final judgment terminates his criminal liability as well as the civil
liability based solely thereon.66

WHEREFORE, the instant petition is DISMISSED. The assailed consolidated Decision of the
Court of Appeals dated May 23, 1996, in CA-G.R. SP No. 35928 and CA G.R. SP No. 35719, is
AFFIRMED WITH MODIFICATION that the charges against deceased petitioner, Roberto S.
Benedicto, particularly in Criminal Cases Nos. 91-101879 to 91-101883, 91-101884 to
101892, and 92-101959 to 92-101969, pending before the Regional Trial Court of Manila,
Branch 26, are ordered dropped and that any criminal as well as civil liability ex delicto that