G.R. No.

171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE,
JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.

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

G.R. No. 171409 May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, Respondents.

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

G.R. No. 171485 May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO

A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP, Respondents.

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

G.R. No. 171483 May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.

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

G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489 May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, Respondents.

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

G.R. No. 171424 May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-
CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength – the use of force – cannot make wrongs into rights. In this regard, the
courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials
of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me
by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,"
and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the democratic Philippine
State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State – and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after
all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers,
leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a
plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to
the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’
counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement,
they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show
and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going
to the streets in protest, but also by wearing red bands on our left arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San
Juan announced through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a
public statement: "All SAF units are under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of
the Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop
the soldiers because they too, were breaking the chain of command to join the forces foist to unseat
the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return
to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming year of accomplishing
its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule
that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing
rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He claimed that with the forces
of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the President’s ouster is
nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O.
No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its front organizations to join
5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President’s mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-
over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the protesters marching forward
to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal
of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf
S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." The PNP warned that it would take over any media organization that would
not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards – and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications’
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could
not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested
while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency
has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty
one (21) other members of the House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary
and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is
not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised
Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights
such as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal
standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis
 c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts
may exercise such power only when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is "definite and concrete, touching the legal relations of parties having
adverse legal interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor
General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or value.27 Generally,
courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over
the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the public’s interest, involving
as they do the people’s basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio
V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take
into account the Chief Justice’s very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is based on his own
right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for
a private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are
the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress’ taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
 (3) for voters, there must be a showing of obvious interest in the validity of the election law
in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens’ cases involving constitutional
issues. It held that "there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt.
The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the standing
rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this
very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases." 1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that
the President, during his tenure of office or actual incumbency,67 may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted
the focus to the system of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial Department, which in
this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency,
the President must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable only to his conscience,
the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is
mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "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." The
latter part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the President’s decision is totally bereft of factual
basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold
her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for
our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may,
in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation,
the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the people’s first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick
M. Watkins saw "no reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to
the previous forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency dictatorship should be "strict political
conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of
concentrating power – in a government where power has consciously been divided – to cope with…
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject
to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by constitutional means – i.e., he
must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency.98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated

unless it is necessary or even indispensable to the preservation of the State and its
constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…

4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never
be permanent in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which
it was instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, "the suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator"
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government
by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly procedure of law as
opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from
Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson’s "balanced power structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the
same time, it obliges him to operate within carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its
face and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad 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.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:
[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.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed
law may be valid. Here, petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth doctrine.
For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best
position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For
this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente
V. Mendoza,114an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties.
It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him
to secure the people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot
be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling clause
of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall
be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province
of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos’
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense
to take over "the management, control and operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of its effort to contain, solve and end the present
national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency
powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from
Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected with public interest," it
refers to Congress, not the President. Now, whether or not the President may exercise such power
is dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII
refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of
"emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception.127 Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in
Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting
laws been surrendered to another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act, are
called upon ‘to perform the duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.
 c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the President’s calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
"acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines." They are internal rules issued by the executive officer to his subordinates precisely
for the proper and efficientadministration of law. Such rules and regulations create no relation
except between the official who issues them and the official who receives them.139 They are based
on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution,
and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions – or threats of the use of force as the most
recent by the United States against Iraq – consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to
mention only a few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United
States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way – because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international
affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become even
more serious in the present global power constellation: one superpower exercises the decisive role
in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of
the police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do
not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of
their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers
and effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even
if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right
of speech. As in the case of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their
right to peaceful assembly. They were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct.
In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as
to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacañang’s directive canceling all permits previously issued by local government
units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may deny the citizens’ right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a
person’s right is restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without warrant;second, the
police operatives seized several materials for publication; third, the search was conducted at about
1:00 o’ clock in the morning of February 25, 2006; fourth, the search was conducted in the absence
of any official of the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not follow the standards –
and the standards are if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend
a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is
threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless
the property is on the person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no more and no
less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of
its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 o’clock in the morning and without any search
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.

SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they
can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional
and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or
one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must
now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However,
PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees;
(2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as
Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of
G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are
ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED
 THIRD DIVISION

G.R. No. 118821 February 18, 2000

MAYOR BAI UNGGIE D. ABDULA and ODIN ABDULA, petitioners,

vs.
HON. JAPAL M. GUIANI, in his capacity as Presiding Judge, of Branch 14 of the Regional
Trial Court of Cotabato City, respondent.

GONZAGA-REYES, J.:

At bench is a petition for certiorari and prohibition to set aside the warrant of arrest issued by herein
respondent Japal M. Guiani, then presiding judge of Branch 14 of the Regional Trial Court of
Cotabato City, ordering the arrest of petitioners without bail in Criminal Case No. 2376 for murder.

The antecedent facts of the case are as follows:

On 24 June 1994, a complaint for murder, docketed as I.S. No. 94-1361, was filed before the
Criminal Investigation Service Command, ARMM Regional Office XII against herein petitioners and
six (6) other persons1 in connection with the death of a certain Abdul Dimalen, the former COMELEC
Registrar of Kabuntalan, Maguindanao.2 The complaint alleged that herein petitioners paid the six
other respondents the total amount of P200,000.00 for the death of Abdul Dimalen.3

Acting on this complaint, the Provincial Prosecutor of Maguindanao, Salick U. Panda, in a Resolution
dated 22 August 19944, dismissed the charges of murder against herein petitioners and five other
respondents on a finding that there was no prima facie case for murder against them. Prosecutor
Panda, however, recommended the filing of an information for murder against one of the
respondents, a certain Kasan Mama. Pursuant to this Resolution, an information for murder was
thereafter filed against Kasan Mama before the sala of respondent Judge. 1âwphi1.nêt

In an Order dated 13 September 19945, respondent Judge ordered that the case, now docketed as
Criminal Case No. 2332, be returned to the Provincial Prosecutor for further investigation. In this
Order, respondent judge noted that although there were eight (8) respondents in the murder case,
the information filed with the court "charged only one (1) of the eight (8) respondents in the name of
Kasan Mama without the necessary resolution required under Section 4, Rule 112 of the Revised
Rules of Court to show how the investigating prosecutor arrived at such a conclusion." As such, the
respondent judge reasons, the trial court cannot issue the warrant of arrest against Kasan Mama.

Upon the return of the records of the case to the Office of the Provincial Prosecutor for
Maguindanao, it was assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further
investigation. In addition to the evidence presented during the initial investigation of the murder
charge, two new affidavits of witnesses were submitted to support the charge of murder against
herein petitioners and the other respondents in the murder complaint. Thus, Prosecutor Dimaraw
treated the same as a refiling of the murder charge and pursuant to law, issued subpoena to the
respondents named therein.6 On December 6, 1994, herein petitioners submitted and filed their joint
counter-affidavits.

After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December

1994,7 found a prima facie case for murder against herein petitioners and three (3) other
respondents.8 He thus recommended the filing of charges against herein petitioners Bai Unggie
Abdula and Odin Abdula, as principals by inducement, and against the three (3) others, as principals
by direct participation.
Likewise in this 28 December 1994 Resolution, Provincial Prosecutor Salick U. Panda, who
conducted the earlier preliminary investigation of the murder charge, added a notation stating that he
was inhibiting himself from the case and authorizing the investigating prosecutor to dispose of the
case without his approval. The reasons he cited were that the case was previously handled by him
and that the victim was the father-in-law of his son.9

On 2 January 1995, an information for murder dated 28 December 199410 was filed against the
petitioner spouses and Kasan Mama, Cuenco Usman and Jun Mama before Branch 14 of the
Regional Trial Court of Cotabato City, then the sala of respondent judge. This information was
signed by investigating prosecutor Enok T. Dimaraw. A notation was likewise made on the
information by Provincial Prosecutor Panda, which explained the reason for his inhibition.11

The following day, or on 3 January 1995, the respondent judge issued a warrant12 for the arrest of
petitioners. Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an
Urgent Ex-parte Motion13 for the setting aside of the warrant of arrest on 4 January 1995. In this
motion, petitioners argued that the enforcement of the warrant of arrest should be held in abeyance
considering that the information was prematurely filed and that the petitioners intended to file a
petition for review with the Department of Justice.

A petition for review14 was filed by the petitioners with the Department of Justice on 11 January
1995.15 Despite said filing, respondent judge did not act upon. petitioner's pending Motion to Set
Aside the Warrant of Arrest.

Hence, this Petition for Certiorari and Prohibition wherein petitioners pray for the following:

1. upon filing of this petition, a temporary restraining order be issued enjoining the
implementation and execution of the order of arrest dated January 3, 1995 and enjoining the
respondent judge from further proceeding with Criminal Case No. 2376 entitled People of the
Philippines vs. Bai Unggie D. Abdula, et al. upon such bond as may be required by the
Honorable Court;

2. this petition be given due course and the respondent be required to answer;

3. after due hearing, the order of arrest dated January 3, 1995 be set aside and declared
void ab initio and the respondent judge be disqualified from hearing Criminal Case No. 2376
entitled People of the Philippines vs. Bai Unggie D. Abdula, et al.16

In a Resolution17 dated 20 February 1995, this Court resolved to require respondent judge to submit
a comment to the petition. The Court further resolved to issue a temporary restraining
order18 enjoining the respondent judge from implementing and executing the Order of Arrest dated 3
January 1995 and from further proceeding with Criminal Case No. 2376.

At the onset, it must be noted that petitions for certiorari and prohibition require that there be no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of law available to the
petitioner.19 In the instant case, it cannot be said that petitioners have no other remedy available to
them as there is pending before the lower court an Urgent Motion20 praying for the lifting and setting
aside of the warrant of arrest. Ordinarily, we would have dismissed the petition on this ground and let
the trial court decide the pending motion. However, due to the length of time that the issues raised in
the petition have been pending before the courts, it behooves us to decide the case on the merits in
order to preclude any further delay in the resolution of the case.
Respondent Japal M. Guiani retired from the judiciary on 16 April 1996. For this reason, respondent
is no longer the presiding judge of the Regional Trial Court Branch 14 of Cotabato City; and the
prayer of petitioner as to respondent's disqualification from hearing Criminal Case No. 2376 is now
moot and academic. Thus, there remain two issues left for the determination of the Court: first, the
legality of the second information for murder filed before respondent's court; and second, the validity
of the warrant of arrest issued against petitioners.

With respect to the first issue, petitioners aver that it is the respondent judge himself who is
orchestrating the filing of the alleged murder charge against them. In support, petitioners cite five (5)
instances wherein respondent judge allegedly issued illegal orders in a mandamus case pending in
respondent's sala filed against petitioner Mayor Bai Unggie Abdula. These allegedly illegal orders
formed the basis for a criminal complaint which they filed on 6 October 1994 against respondent and
ten (10) others before the Office of the Ombudsman for Mindanao.21 In this complaint, herein
petitioners alleged that the respondent judge illegally ordered the release of the total amount of
P1,119,125.00 from the municipal funds of Kabuntalan, Mindanao to a certain Bayoraiz Saripada, a
purported niece of respondent judge. The Office of the Ombudsman for Mindanao, in an
Order22 dated 12 December 1994, found "sufficient basis to proceed with the preliminary
investigation of the case" and directed the respondents therein to file their respective counter-
affidavits and controverting evidence. From these facts, petitioners argue, it is clear that it is the
respondent judge himself who is orchestrating and manipulating the charges against the petitioner.

Petitioners further state that respondent judge exhibited extreme hostility towards them after the
filing of the said complaint before the Ombudsman. Petitioners claim that immediately after the
issuance of the Order of the Ombudsman requiring respondent judge to file his counter-affidavit,
respondent allegedly berated petitioner Bai Unggie Abdula in open court when she appeared before
him in another case Allegedly, in full view of the lawyers and litigants, respondent judge uttered the
following words in the Maguindanaoan dialect:

If I cannot put you in jail within your term, I will cut my neck. As long as I am a judge here,
what I want will be followed.23

Respondent judge, in compliance with the Order of this Court, filed a Comment dated 3 March
1995.24 In this Comment, he argues that petitioners' enumeration of "incontrovertible facts" is actually
a list of misleading facts which they are attempting to weave into Criminal Case No. 2376 for the
purpose of picturing respondent as a partial judge who abused his discretion to favor petitioner's
accuser.25 He claims that the anti-graft charge filed by petitioners against him is a harassment suit
concocted by them when they failed to lay their hands on the amount of P1,119,125.00 of municipal
funds which respondent had previously ruled as rightfully belonging to the municipal councilors of
Kabuntalan, Maguindanao. Respondent vehemently denies having personally profited from the
release of the municipal funds. Moreover, respondent points out that the allegations in the complaint
seem to imply that the Vice Mayor of Kabuntalan, Bayoraiz Sarupada, was a party to
the mandamus case filed with respondent's court when in truth, there was no case filed by the vice
mayor pending in his court. Finally, respondent denies berating petitioner Bai Unggie Abdula and
uttering the words attributed to him in the petition. According to respondent, the last time petitioner
Bai Unggie Abdula appeared in his sala on December 28, 1994, in connection with the lifting of an
order for her apprehension in another case, he neither berated nor scolded her and in fact, he even
lifted the said order of arrest.

In its Comment with Urgent Motion for the Lifting of the Temporary Restraining Order dated 5 June
1995,26 the Office of the Solicitor-General states that petitioner's allegation that the respondent judge
was biased and prejudiced was pure speculation as no proof was presented that respondent
assumed the role of prosecutor. Moreover, the OSG argued that the fact that the respondent judge
and petitioners had pending cases against each other did not necessarily result in the respondent's
bias and prejudice.

An analysis of these arguments shows that these should have been properly raised in a motion for
the disqualification or inhibition of respondent judge. As previously stated however, the issue as to
whether respondent should be disqualified from proceeding with the case has been rendered moot
and academic as he is no longer hearing the case against petitioners. As such, there is no need for
a prolonged discussion on this issue. It is sufficient to say that in order to disqualify a judge on the
ground of bias and prejudice, petitioner must prove the same by clear and convincing
evidence.27 This is a heavy burden which petitioners have failed to discharge. This Court has to be
shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter
can be branded the stigma of being biased and partial.28

Petitioners next argue that the act of respondent in motu proprio ordering a reinvestigation of the
murder charge against them is another indication of the latter's bias and prejudice.29 They claim that
the filing of their complaint against respondent motivated the latter's Order of 13 September 1994
which ordered the return of the records of the murder case to the provincial prosecutor. Furthermore,
they posit that the latter had no authority to order the reinvestigation considering that same had
already been dismissed as against them by the provincial prosecutor in his Resolution dated 22
August 1994.

A review of the pertinent dates in the petition however show that respondent could not have been
motivated by the Ombudsman's complaint when he issued the 13 September 1994 Order. Petitioner
Bai Unggie Abdula filed the complaint before the Ombudsman of Cotabato City on October 6,
199430 or about a month after the issuance of the 13 September 1994 Order. As such, when
respondent issued the said Order, the same could not have been a retaliatory act considering that at
that time, there was as yet no complaint against him.

With respect to the allegation that the respondent had no legal authority to order a reinvestigation of
the criminal charge considering that the said charge had been previously dismissed as against them,
we hold that respondent did not abuse his discretion in doing so.31

It is true that under the circumstances, the respondent judge, upon seeing that there were no
records attached to the complaint, could have simply ordered the office of the provincial prosecutor
to forward the same. Upon receipt of these records, respondent judge would then have sufficient
basis to determine whether a warrant of arrest should issue. However, from the bare terms of the
questioned order alone, we fail to see any illegal reason that could have motivated the judge in
issuing the same. The order merely stated that the records of the case should be returned to the
Office of the Provincial Prosecutor for further investigation or reinvestigation. He did not unduly
interfere with the prosecutor's duty to conduct a preliminary investigation by ordering the latter to file
an information against any of the respondents or by choosing the fiscal who should conduct the
reinvestigation which are acts certainly beyond the power of the court to do.32 It was still the
prosecutor who had the final say as to whom to include in the information.33

As pointed out by the Office of the Solicitor General, petitioners only imputed bias against the
respondent judge and not against the investigating prosecutor.34 Consequently, this imputation is of
no moment as the discretion to file an information is under the exclusive control and supervision of
the prosecutor and not of respondent judge. Furthermore, petitioners cannot claim that they were
denied due process in the reinvestigation of the charges against them as they actively participated
therein by submitting their joint counter-affidavit.
Petitioners likewise allege that the information charging petitioners with murder is null and void
because it was filed without the authority of the Provincial Prosecutor. They note that in the
Resolution dated 28 December 1994 and in the corresponding information, it clearly appears that the
same were not approved by the Provincial Prosecutor as it was signed only by the investigating
prosecutor, Anok T. Dimaraw.

Petitioners' contention is not well-taken.

The pertinent portion of the Rules of Court on this matter state that "(n)o complaint or information
shall be filed or dismissed by an investigating fiscal without the prior written authority or approval of
the provincial or city fiscal or chief state prosecutor (emphasis ours)." In other words, a complaint or
information can only be filed if it is approved or authorized by the provincial or city fiscal or chief
state prosecutor.

In the case at bench, while the Resolution and the Information were not approved by Provincial
Prosecutor Salick U. Panda, the filing of the same even without his approval was authorized. Both
the Resolution and information contain the following notation:*

The herein Provincial Prosecutor is inhibiting himself from this case and Investigating
Prosecutor Enok Dimaraw may dispose of the case without his approval on the following
ground:

That this case has been previously handled by him, and whose findings differ from the
findings of Investigating Prosecutor Dimaraw; and the victim is a relative by affinity, he being
a father-in-law of his son.

(Signed) Salick U. Panda

Provincial Prosecutor

It must be stressed that the Rules of Court speak of authority or approval by the provincial, city, or
chief state prosecutor. The notation made by Prosecutor Panda clearly shows that Investigating
Prosecutor Dimaraw was authorized to "dispose of the case without his approval." In issuing the
resolution and in filing the information, the investigating prosecutor was acting well within the
authority granted to him by the provincial prosecutor. Thus, this resolution is sufficient compliance
with the aforecited provision of the Rules of Court.

Having thus ruled on the validity of the information filed against the respondents, we now address
the issue as to the legality of the warrant of arrest issued by respondent judge by virtue of the said
information.

On this issue, petitioners, citing the case of Allado vs. Diokno 35 argue that the warrant for his arrest
should be recalled considering that the respondent judge "did not personally examine the evidence
nor did he call the complainant and his witnesses in the face of their incredible accounts." As proof,
he points to the fact that the information was filed at around 4:00 p.m. of the January 2, 1995 and the
order of arrest was immediately issued the following day or on January 3, 1995. Moreover, petitioner
argues, respondent judge did not even issue an order stating that there is probable cause for the
issuance of the warrant of arrest, a clear violation of the guidelines set forth in the Allado case.

Respondent, in his Comment, denies any irregularity in the issuance of the warrant of arrest. He
argues as follows:
 Written authority having been granted by the Provincial Prosecutor, as required by the third
paragraph of Section 4, Rule 112 of (the) Rules on Criminal Procedure, and there having
been no reason for the respondent to doubt the validity of the certification made by the
Assistant Prosecutor that a preliminary investigation was conducted and that probable cause
was found to exist as against those charged in the Information filed, and recognizing the
prosecution's legal authority to initiate and control criminal prosecution (Rule 110, Section 5)
and considering that the court cannot interfere in said prosecution's authority (People vs.
Moll, 68 Phil. 626), the respondent issued the warrant for the arrest of the accused pursuant
to paragraph (a), section 6, Rule 112;36

The OSG, in defending the act of respondent judge, argues that the allegation that respondent did
not personally examine the evidence is not supported by current jurisprudence. In support, the OSG
invokes the pronouncement in Soliven vs. Makasiar 37 that "(I)n satisfying himself of the existence of
probable cause, the judge is not required to personally examine the complainant and his witnesses."
Moreover, the OSG points out that the judge enjoys a wide degree of latitude in the determination of
probable cause for the issuance of warrants of arrest depending on the circumstances of each
case.38

The OSG further argues that the case of Allado vs. Diokno, relied upon by petitioners, has no
application in the case at bar considering that in the cited case, the documents submitted before the
court failed to establish any probable cause as they were conflicting and contradictory. Significantly,
the OSG continues, petitioners could not point out a single flaw in the evidence presented by the
prosecutor to negate the existence of probable cause. Finally, the OSG points out that petitioner's
unfounded allegations cannot prevail over the well-settled rule that official duty is presumed to be
regularly performed.39

After a careful analysis of these arguments, we find merit in the contention of petitioners.

The pertinent provision of the Constitution reads:

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

It must be stressed that the 1987 Constitution requires the judge to determine probable cause
"personally," a requirement which does not appear in the corresponding provisions of our previous
constitutions. This emphasis evinces the intent of the framers to place a greater degree of
responsibility upon trial judges than that imposed under previous Constitutions.40

In Soliven vs. Makasiar, this Court pronounced:

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
 disregard the fiscal's report and require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of probable cause.

Ho vs. People 41 summarizes existing jurisprudence on the matter as follows:

Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as
held in Inting, the determination of probable cause by the prosecutor is for a purpose
different from that which is to be made by the judge. Whether there is reasonable ground to
believe that the accused is guilty of the offense charged and should be held for trial is what
the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of
arrest should be issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. Thus, even if both
should base their findings on one and the same proceeding or evidence, there should be no
confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the
prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously
and understandably, the contents of the prosecutor's report will support his own conclusion
that there is reason to charge the accused for an offense and hold him for trial. However, the
judge must decide independently. Hence, he must have supporting evidence, other than the
prosecutor's bare report, upon which to legally sustain his own findings on the existence (or
nonexistence) of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is lodged in
him by no less than the most basic law of the land. Parenthetically, the prosecutor could
ease the burden of the judge and speed up the litigation process by forwarding to the latter
not only the information and his bare resolution finding probable cause, but also so much of
the records and the evidence on hand as to enable the His Honor to make his personal and
separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden
trial courts by obliging them to examine the complete records of every case all the time
simply for the purpose of ordering the arrest of an accused. What is required, rather, is that
the judge must have sufficient supporting documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any)
upon which to make his independent judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely
solely and entirely on the prosecutor's recommendation, as Respondent Court did in this
case. Although the prosecutor enjoys the legal presumption of regularity in the performance
of his official duties and functions, which in turn gives his report the presumption of accuracy,
the Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in his
bounden duty if he relies merely on the certification or the report of the investigating officer.
(citations omitted)

In the case at bench, respondent admits that he issued the questioned warrant as there was "no
reason for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a
preliminary investigation was conducted and that probable cause was found to exist as against those
charged in the information filed." The statement is an admission that respondent relied solely and
completely on the certification made by the fiscal that probable cause exists as against those
charged in the information and issued the challenged warrant of arrest on the sole basis of the
prosecutor's findings and recommendations. He adopted the judgment of the prosecutor regarding
the existence of probable cause as his own.

Although the prosecutor enjoys the legal presumption of regularity in the performance of his official
duties, which in turn gives his report the presumption of accuracy, nothing less than the fundamental
law of the land commands the judge to personally determine probable cause in the issuance of
warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the
certification or report of the investigating officer.

To be sure, we cannot determine beforehand how cursory or exhaustive the respondent's

examination of the records should be.42 The extent of the judge's examination depends on the
exercise of his sound discretion as the circumstances of the case require. In the case at bench, the
respondent had before him two different informations and resolutions charging two different sets of
suspects. In the face of these conflicting resolutions, it behooves him not to take the certification of
the investigating prosecutor at face value. The circumstances thus require that respondent look
beyond the bare certification of the investigating prosecutor and examine the documents supporting
the prosecutor's determination of probable cause. The inordinate haste that attended the issuance of
the warrant of arrest and respondent's own admission are circumstances that tend to belie any
pretense of the fulfillment of this duty.
1âwphi1.nêt

Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the
certification made by the investigating prosecutor has abdicated his duty under the Constitution to
determine on his own the issue of probable cause before issuing a warrant of arrest. Consequently,
the warrant of arrest should be declared null and void.

WHEREFORE, premises considered, the petition for certiorari and prohibition is GRANTED. The
temporary restraining order we issued on 20 February 1995 in favor of petitioners insofar as if
enjoins the implementation and execution of the order of arrest dated 3 January 1995 is made
permanent. Criminal Case No. 2376 is REMANDED to Branch 14 of the Regional Trial Court of
Cotabato City for a proper determination of whether a warrant of arrest should be issued and for
further proceedings.

SO ORDERED.
 THIRD DIVISION

G.R. No. 78631 June 29, 1993

COLUMBIA PICTURES, INC., ORION PICTURES CORP., PARAMOUNT PICTURES CORP.,

TWENTIETH CENTURY FOX FILM CORP., UNITED ARTISTS CORP., UNIVERSAL CITY
STUDIOS, INC., THE WALT DISNEY COMPANY, and WARNER BROS., INC., petitioners,
vs.
HON. JUDGE ALFREDO C. FLORES, FGT VIDEO NETWORK, INC., MANUEL MENDOZA,
ALFREDO C. ONGYANCO, ERIC APOLONIO, SUSAN YANG and EDUARDO A.
YOTOKO, respondents.

Siguion Reyna, Montecillo & Ongsiako Law Office for petitioners.

Santos & Associates and San Jose, Enrique, Lucas, Santos & Borje Law Offices for respondents.

MELO, J.:

Before us is a petition for certiorari seeking to set aside the order dated May 29, 1987 of the
Regional Trial Court of the National Capital Region (Branch 167, Pasig) directing the immediate
release and return of television sets, video cassette recorders, rewinders, tape head cleaners,
accessories, equipment, and other paraphernalia or pieces of machinery which had been seized by
operatives of the National Bureau of Investigation by virtue of a search warrant.

Petitioners herein are all foreign corporations organized and existing under the laws of the United
States of America and represented in the Philippines by their attorney-in-fact, Rebecca Benitez-Cruz
of the Motion Picture Association of America, Inc. (MPAA for brevity). Private respondent FGT Video
Network, Inc. is a merger of Fox, Galactic, and Technica Video. It is registered with and licensed by
the Videogram Regulatory Board as a distributor under License No. 1333 VMM. Technica Video, Inc.
which is part of the merger, is registered with and licensed as a reproducer by the said board under
License No. 967 VMM (p. 11, Rollo).

In a letter dated April 20, 1987, the MPAA, through counsel Rico V. Domingo, lodged a complaint
before then Director Antonio Carpio of the National Bureau of Investigation (NBI) against certain
video establishments for violation of Presidential Decree No. 49 (Protection of Intellectual Property),
as amended by Presidential Decree No. 1988, in connection with its anti-piracy campaign.
Specifically complaining of the "unauthorized sale, rental, reproduction and/or disposition of
copyrighted film", the MPAA sought the NBI's "urgent assistance in the conduct of search and
seizure operations in Metro Manila and elsewhere". (p. 29, Rollo.)

On the basis of said letter, NBI and private agents conducted discreet surveillance operations on
certain video establishments, among them private respondent FGT Video Network, Inc. (FGT). Thus,
on April 20, 1987, Danilo Manalang, a.k.a. Ronaldo Lim, allegedly an NBI agent, went to the office of
FGT to have the copyrighted motion pictures "Cleopatra" owned by Twentieth Century Fox Film
Corp. and "The Ten Commandments" owned by Paramount Pictures, Inc. reproduced or retaped in
video format. For the reproduction services, FGT issued Order Slip No. 3482 dated April 20, 1987
and Delivery Slip No. 118667 dated April 22, 1987, for which services Danilo Manalang paid P45.00.
On May 5, 1987, Manalang also had MGM's copyrighted film "Walk Like a Man" reproduced or
retaped by FGT for P15.00 (p. 5, Rollo).

Consequently, on May 14, 1987, NBI Agent III Lauro C. Reyes, with Manalang and Rebecca
Benitez-Cruz as witnesses, applied for a search warrant with the Regional Trial Court in Pasig.
Introduced as evidence in support of the application were the following: the letter dated April 20,
1987 of the MPAA through Rico V. Domingo (Exh. A) FGT's Order Slip No. 3842 (Exh. B); FGT's
Delivery Slip No. 118667 (Exh. B-1); video cassettes containing the film "The Ten Commandments"
(Exhs. B-1-A, B-1-B); video cassette containing the film "Cleopatra" (Exh. B-1-C); video cassette
containing the film "Walk Like a Man" (Exh. B-1-D); FGT's Order Slip No. 3923 dated May 5, 1987
(Exh. B-2); FGT's Delivery Slip No. 123321 dated May 6, 1987 (Exh. B-3); list of copyrighted MPAA
member company titles (Exh. C); sketch of location of FGT's office or premises (Exh. D); affidavit of
Rebecca Benitez-Cruz (Exh. E); special power of attorney designating Ms. Benitez-Cruz as
petitioners' attorney-in- fact (Exh. F to F-8); and affidavit of Danilo Manalang (Exh. G).

Upon the offer of these pieces of evidence, Judge Alfredo C. Flores of the aforesaid court, issued
Search Warrant No. 45 which reads:

TO ANY PEACE OFFICER:

GREETINGS:

It appearing to the satisfaction of the Undersigned after examining under oath NBI
Senior Agent Lauro C. Reyes and his witnesses Mr. Danilo Manalang and Ms.
Rebecca Benitez-Cruz, that there is a probable cause to believe that Violation of
Section 56 P.D. No. 49 as amended by P.D. No. 1988 (otherwise known as the
Decree on Protection of Intellectual Property) has been committed and that there are
good and sufficient reasons to believe that FGT Video Network, Inc., Manuel
Mendoza, Alfredo C. Ongyanco, Eric Apolonio, Susan Yang and Eduardo Yotoko are
responsible and have in control/possession at No. 4 Epifanio de los Santos corner
Connecticut, Greenhills, San Juan, Metro Manila (per attached sketch and list of
MPAA member Company Titles) the following properties to wit:

(a) Pirated video tapes of the copyrighted motion pictures/films the

titles of which are mentioned in the attached list;

(b) Posters, advertising leaflets, flyers, brochures, invoices, lists of

titles being reproduced or retaped, journals, ledgers, jon (sic) order
slips, delivery slips and books of accounts bearing and/or mentioning
the pirated films with titles (as per attached list), or otherwise used in
the reproduction/repating business of the defendants;

(c) Television sets, video cassette recorders, rewinders, tape head

cleaners, accessories, equipment and other machines and
paraphernalia or materials used or intended to be used in the
unlawful sale, lease, distribution, or possession for purpose of sale,
lease, distribution, circulation or public exhibition of the above-
mentioned pirated video tapes which they are keeping and
 concealing in the premises above-described, which should be seized
and brought to the Undersigned.

You are hereby commanded to make an immediate search at any

time in the day between 8:00 A.M. to 5:00 P.M. of the premises
above-described and forthwith seize and take possession of the
above-enumerated personal properties, and bring said properties to
the undersigned immediately upon implementation to be dealt with as
the law directs.

WITNESS MY HAND this 14th day of May 1987, at Pasig, Metro

Manila. (pp. 30-31, Rollo; Emphasis supplied.)

At or about high noon of the same day, agents from the NBI, led by Lauro C. Reyes and Mamerto
Espartero, with the assistance of the personnel of the Videogram Regulatory Board headed by
Elmer San Pascual, duly served Search Warrant No. 45 on the operators or representatives of FGT.
In the course of the search of the premises of FGT, the NBI agents found and seized various video
tapes of duly copyrighted motion pictures or films owned and exclusively distributed by petitioners.
Also seized were machines and equipment, television sets, paraphernalia, materials, accessories,
rewinders, tape head cleaners, statements of order, return slips, video prints, flyers, production
orders, and posters. Inventories of these seized articles were then prepared and copies thereof were
furnished Jess Ayson, production manager of FGT. On May 18, 1987, the NBI agents filed a return
of the search warrant with a motion to retain custody of the seized items (p. 32, Rollo).

Meanwhile, FGT filed an urgent motion for the immediate release of equipment and accessories "not
covered" by the search warrant, without prejudice to the filing of a motion to quash the said search
warrant (p. 101, Rollo). It argued that as a licensed video reproducer, FGT had the right to maintain
possession of the seized reproduction equipment and paraphernalia which are not contraband or
illegal per se, but are rather "exclusively used and intended to be used for reproduction" and not in
the "sale, lease, distribution or possession for purposes of sale, lease distribution, circulation or
public exhibition of pirated video tapes". (p. 102, Rollo.)

Petitioners opposed the motion, asserting that the seized articles were all lawfully taken. They
explained that since FGT was a videogram distributor and not a reproducer, "it may be logically
concluded that such 634 VCRs, accessories, etc." were "used or intended to be used in the unlawful
sale, lease, distribution or possession for purposes of sale, lease, distribution, circulation or public
exhibition of, at the very least, the 310 videocassette tapes containing the copyrighted films/motion
pictures." They asserted that Search Warrant No. 45 was issued upon the proper determination of
probable cause and that, therefore, it is not for FGT "to second-guess the wisdom" of the court's
directive to seize the questioned VCRs and accessories "as an inquiry thereon would involve
evidentiary matters which are better ventilated in the criminal prosecution proper". (pp. 107-
116, Rollo.)

Finding that FGT was a "registered and duly licensed distributor and in certain instances and under
special instructions and conditions . . . reproducer of videograms" and that, therefore, its right to
possess and use the seized equipment had been "placed in serious doubt", the lower court resolved
the doubt "against the Government and in favor of a lawful business enterprise." Applying the
constitutional precept of presumption of innocence and considering that the seized articles are not
contraband, respondent court ruled that to allow the Government "to keep possession of the
equipment(s) and machines where there is no actual criminal charge" would amount to a
"confiscation in violation of the due process clause of the constitution, notwithstanding the filing by
the Director of the NBI of a letter to the Department of Justice recommending that the defendants be
charged with violation of Section 56 of P.D. No. 49, as amended by P.D. No. 1988." (pp. 131-
132, Rollo.)

Thus, in its order on May 29, 1987, the lower court granted FGT's motion and ordered the immediate
release and return of the "television sets, video cassette recorders, rewinders, tape head cleaners,
accessories, equipment and other machines or paraphernalias, as reflected in the "Receipt for
Properties Seized" attached to the records of the case beginning from page 84 to page 130, to the
defendants, excluding video cassette tapes reflected in the "Receipts for Properties Seized",
beginning from page 132 to page 146 of the records." Respondent court also ordered the inventory
of all articles returned with individual descriptions "to evidence their existence" copies of which
inventory should be furnished the NBI and the court (p. 132, Rollo).

Hence, the present recourse.

As prayed for by petitioners, on June 17, 1987, the Court issued a temporary restraining order
enjoining respondents from implementing the lower court's order of May 29, 1987 upon a bond in the
amount of P750,000.00 which petitioners accordingly posted on June 19, 1987, (pp. 138-141, Rollo.)

The sole issue to be resolved is whether or not the lower court acted with grave abuse of discretion
amounting to lack of jurisdiction in ordering the immediate release and return of some of the items
seized by virtue of the search warrant.

Petitioners insist that the search warrant was issued upon due determination of probable cause.
They argue that FGT's act of illegally reproducing copyrighted films had been clearly established by
evidence on record and that FGT's principal ground in praying for the immediate release of the seize
articles is a matter of defense which should be ventilated at the trial of the case on the merits.

Private respondents, on the other hand, claim that the issuance of Search Warrant No. 45 is tainted
with illegality as no particular or specific acts or omissions constituting the offense charged had been
alleged in the application for its issuance.

The right to security against unreasonable searches and seizures is guaranteed under Section 2,
Article III of the 1987 Constitution which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined 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.

Thus, Sections 3 and 4 of Rule 126 of the Rules of Court provide for the requisites in the issuance of
search warrants:

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but
upon probable cause in connection with one specific offense 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 things to be seized.
 Sec. 4. Examination of complainant; record. — The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.

In issuing a search warrant, the judge must strictly comply with the constitutional and statutory
requirements. He must determine the existence of probable cause by personally examining the
applicant and his witnesses in the form of searching questions (Silva vs. Presiding Judge, RTC of
Negros Oriental, Br. XXXIII (203 SCRA 140 (1991]). The search warrant must contain a specific
description of the place to be searched and the articles sought to be seized must be described with
particularity (Pendon vs. Court of Appeals, 191 SCRA 429 [1990]).

Withal, measured by the aforegoing constitutional and legal provisions as well as the existing
jurisprudence on the matter, we find that Search Warrant No. 45 fails to satisfy the test of legality.
More so because the Court has previously decided a case dealing with virtually the same search
warrant.

In 20th Century Fox Film Corp. vs. Court of Appeals (164 SCRA 655 [1988]), wherein therein
petitioner is also one of the petitioners herein, we upheld the legality of the order of the lower court
lifting the search warrant issued under circumstances similar to those obtaining in the case at bar.

A striking similarity between the case at bar and 20th Century Fox is the fact that Search Warrant
No. 45, specifically paragraph (c) thereof describing the articles to be seized, contains an almost
identical description as the warrant issued in the 20th Century Fox case, to wit:

(c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners,
accessories, equipments and other machines used or intended to be used in the
unlawful reproduction, sale, rental/lease, distribution of the above-mentioned video
tapes which she is keeping and concealing in the premises above-described. (at p.
664.)

On the propriety of the seizure of the articles above-described, we held in said case:

Television sets, video cassette recorders, rewinders and tape cleaners are articles
which can be found in a video tape store engaged in the legitimate business of
lending or renting out betamax tapes. In short, these articles and appliances are
generally connected with, or related to a legitimate business not necessarily involving
piracy of intellectual property or infringement of copyright laws. Hence, including
these articles without specification and/or particularity that they were really
instruments in violating an Anti-Piracy law makes the search warrant too general
which could result in the confiscation of all items found in any video store. (at p. 665.)

The language used in paragraph (c) of Search Warrant No. 45 is thus too all-embracing as to include
all the paraphernalia of FGT in the operation of its business. As the search warrant is in the nature of
a general one, it is constitutionally objectionable (Corro vs. Lising, 137 SCRA 541 [1985]).

In consequence, respondent court was merely correcting its own erroneous conclusions in issuing
Search Warrant No. 45 when it ordered the return of the seized television sets and other
paraphernalia specified in the motion filed by FGT. This can be gleaned from its statement that ". . .
the machines and equipment could have been used or intended to be used in the illegal reproduction
of tapes of the copyrighted motion pictures/films, yet, it cannot be said with moral certainty that the
machines or equipment(s) were used in violating the law by the mere fact that pirated video tapes of
the copyrighted motion pictures/films were reproduced. As already stated, FGT Video Network, Inc.
is a registered and duly licensed distributor and in certain instances and under special
instructions . . . reproducer of videograms, and as such, it has the right to keep in its possession,
maintain and operate reproduction equipment (s) and paraphernalia (s)." (pp. 131-132, Rollo.)

Far from being despotic or arbitrary, respondent judge must be commended for rectifying his error
when he found that his initial conclusions were inaccurate and erroneous, colliding as they did with
the constitutional rights of private respondent.

Much has been said in the media about piracy of films and videotapes and that violators of the law
must be brought to the courts but, as the Court said in Bagalihog vs. Fernandez (198 SCRA 614
[1991]), "[z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the
Constitution itself abhors." (at p. 622.)

WHEREFORE, the petition is DISMISSED, the assailed order of May 29, 1987 AFFIRMED, and the
temporary restraining order issued on June 18, 1987, vacated and lifted.

SO ORDERED.
 EN BANC

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra
St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars
nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his
car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of
the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber
pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa
Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he
must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused
to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of
the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation,4 alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote
on the last page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite
action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent
Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his
release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation8 and prayed that in the meantime all proceedings in the court be
suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal
an omnibus motion for immediate release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion
of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall
have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the
following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours
from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a
petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea
of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon
the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two
(2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court
upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General,
the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner
had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was
legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person
may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceed against in accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action.While it is true that the fiscal has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him the full measure of his right to due
process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that the
right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his
right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner
was already before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking for
a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had
waived their right to preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and
for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation
on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to
preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-
eight (48) hours from notice, was plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have
on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably
could reach the conclusion that the evidence on hand does not warrant a finding of probable cause.
In any event, the constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed
to trial without preliminary investigation, with extraordinary haste, to the applause from the audience
that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and
screaming," in a manner of speaking . During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made
very clear petitioner's vigorous protest and objection to the arraignment precisely because of the
denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's
protests and objections that an obviously angered court and prosecutor dared him to withdraw or
walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his "continuing
objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to
challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention.30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected by the trial
judge, and to run the risk of being held to have waived also his right to use what is frequently the
only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idleceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred
Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may
issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary
investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

FIRST DIVISION

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally
transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a
fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at
about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply
accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their
headquarters for investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who had also been arrested with him that same
evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the
arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial
proceeded only against the accused-appellant, who was eventually convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their informers
that the accused-appellant was on board a vessel bound for Iloilo City and was carrying
marijuana. 7 He was Identified by name. 8Acting on this tip, they waited for him in the evening of June
25, 1984, and approached him as he descended from the gangplank after the informer had pointed
to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10who testified
that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this
finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily
arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he parried the blows
while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and
that his business was selling watches and sometimes cigarettes. 13 He also argued that the
marijuana he was alleged to have been carrying was not properly Identified and could have been
any of several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that he claimed to
have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo
for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin
testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they damaged as a
result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he
said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that
he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who
had immediate access to the testimony of the witnesses and had the opportunity to weigh their
credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face
and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit to a
medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never been
set free since he was arrested in 1984 and up to the present. No bail has been allowed for his
release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he
was arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this
point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that
they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular informer who reported to
them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the
time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a
third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the
arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the

coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding the
activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of

Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of

information, maybe for security reason and we cannot Identify the
person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo

with marijuana was received by you many days before you received
the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days
before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the act
of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was

mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search
of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield
positive result.

Q Is that your procedure that whenever it will yield positive result you
do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the
PC. The Supreme Court cannot countenance such a statement. This is still a government of laws
and not of men.

The mandate of the Bill of Rights is clear:

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

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the
government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the
Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant
as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject
to warrantless searches and seizures for violation of the customs law because these vehicles may
be quickly moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses,
it is clear that they had at least two days within which they could have obtained a warrant to arrest
and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The
vehicle was Identified. The date of its arrival was certain. And from the information they had
received, they could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of
what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act of selling the prohibited
drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for
his arrest. To all appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and
not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to
return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional
presumption is that he is innocent, and he will be so declared even if his defense is weak as long as
the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution
must fall. That evidence cannot be admitted, and should never have been considered by the trial
court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree,
to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because
there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained
thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends
the efforts of our law-enforcement officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual
in the realm, including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes,
again, said, "I think it a less evil that some criminals should escape than that the government should
play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-
appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be
discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
 THIRD DIVISION

G.R. Nos. 101216-18 June 4, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
REDENTOR DICHOSO y DAGDAG, SONIA DICHOSO y VINERABLE and JAIME PAGTAKHAN y
BICOMONG, accused.

REDENTOR DICHOSO y DAGDAG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo M. Alcantara for accused-appellant.

DAVIDE, JR., J.:

Accused Redentor Dichoso y Dagdag appeals from the 11 June 1991 Decision of Branch 30 of the
Regional Trial Court (RTC) of San Pablo City in Criminal Case No. 6711-SP (91) and Criminal Case
No. 6712-SP (91)1 finding him guilty beyond reasonable doubt of violating Section 15, Article III and
Section 4, Article II, respectively, of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended,
and sentencing him in each of the said cases to suffer the penalty of "reclusion perpetua with all its
accessory penalties, to pay a fine of P20,000.00 and the costs of the suit."

The informations in the above criminal cases were filed against Redentor Dichoso and his wife
Dichoso y Vinerable on 8 March 1991.

The accusatory portion of the information in Criminal Case No. 6711-SP (91) reads as follows:

That on about February 23, 1991, in the City of San Pablo, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the accused above-
named, conspiring, confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously sell, deliver, give way (sic) to another and
distribute 1.3 grams of methamphetamine hydrochloride (sic) (shabu) and 6 decks of
aluminun foil of shabu, a regulated drug without being authorized by law.

CONTRARY TO LAW. 2

while that in Criminal Case No. 6712-SP (91) states:

That on or about February 23, 1991, in the City of San Pablo, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the accused above-
named, conspiring, confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously sell, deliver, give way (sic) to another and
distribute dried marijuana fruiting tops, leaves and seeds, a dangerous drug, without
being authorized by law.
 CONTRARY TO LAW.3

Accused Jaime Pagtakhan was charged with illegally possessing a regulated drug (shabu) and,
thus, violating Section 16, Article III of the Dangerous Drugs Act, as amended, in an information
which was docketed as Criminal Case No. 6710-SP (91) in the court a quo.

Accused Sonia Dichoso y Vinerable could not be arrested because, in the words of the trial court,
she "cannot be located."4 The records do not show that the trial court took further steps to have her
arrested.

The three (3) cases were consolidated for joint trial in Branch 30 of the RTC of San Pablo City and
trial proceeded as against accused Jaime Pagtakhan and Redentor Dichoso after the two had
entered a plea of not guilty upon arraignment. NARCOM agents S/Sgt. Iluminado Evangelista, Sgt.
Fabian Gapiangao, CIC Rolando Bisenio and P/Maj. Rosalinda Royales, the forensic chemist,
testified for the prosecution. Accused Redentor Dichoso and Jaime Pagtakhan, as well as barangay
captain Francisco Calabia, testified for the defense. The latter identified a Sinumpaang Salaysay5 in
which he denounced the veracity of Exhibits "B," "C" and "D" and his signatures therein.

The evidence for the prosecution is summarized by the trial court as follows:

On February 22, 1991, the Narcotics Command of the 4th Regional Unit stationed at
Interior M. Paulino St., San Pablo City applied for a search warrant to be issued on
the house of spouses Redentor Dichoso and Sonia Dichoso located at Farconville
Subd., Phase II, San Pablo City. After searching questions on the applicant and his
deponent the Court was satisfied that there existed probable cause to believe that
indeed said spouses were keeping, selling and using an undetermined quantity of
methamphetamine hydrochloride (sic) (shabu) and marijuana in said residence.
Consequently, Search Warrant No. 028 was issued by the Court (Exhibit "A").

On February 23, 1991, (Saturday) at about 2:00 P.M. at the local NARCOM stationed
at Interior M. Paulino St., San Pablo City, T/Sgt. Iluminado Evangelista, the local
District Commander organized a team to serve Search Warrant No. 028 upon the
spouses Redentor Dichoso and Sonia Dichoso residing at Farconville Subd., Phase
II, San Pablo City. Evangelista, the team leader, was with S/Sgt. Fabian Gapiangao,
Sgt. Antonio Tila, CIC Rolando Besinio, Police Officer Michael Exconde and a driver.
Upon approaching said residence the team met an old man and Evangelista
introduced himself and his companions as Narcom agents duly armed with a search
warrant. Evangelista asked for Redentor and Sonia and the old man opened the gate
into the Dichoso compound for the Narcom Agents. The old man led them to the
Nipa house where inside Redentor, Jaime Pagtakhan and two other persons were
sitting near a small table with suspected shabu and paraphernalia on top thereof.
Taken aback the foursome did not move. Evangelista told them that they were
Narcom agents, and that they should not make any move and they had with them a
search warrant to serve. He then asked Sgt. Tila, a team member, to fetch for the
barangay chairman (sic). In the meantime Evangelista served a copy of the search
warrant to Redentor. After about 15 to 20 minutes Chairman Francisco Calabia
arrived and was met by Evangelista who forthwith showed him a copy of the said
warrant. Calabia read the search warrant and explained the contents thereof to
Redentor.

Thereafter, the search ensued inside the nipa house. Evangelista discovered 200
grams more or less of suspected marijuana wrapped in plastic inside a cabinet which
was standing on the right side upon entering the door of the nipa house. Likewise
discovered by him inside the cabinet are six (6) decks of suspected shabu wrapped
in an aluminun foil and the "Golden Gate" notebook (Exhibit F) containing the list of
suspected customers of dangerous and regulated drugs together with the
corresponding quantity and prices. From Pagtakhan's right hand, Evangelista
recovered a small quantity of suspected shabu.

Then, the search was shifted to the main house of the Dichosos. However, the
search produced negative results.

Evangelista instructed Besinio to collect the confiscated items recovered at the nipa
house of the Dichosos. Besinio separately wrapped the items whereupon he and
Gapiangao made markings on the same. Besinio also put the names of Redentor
and Sonia inside some of the pages of Exhibit "F". The team then got from the main
house a plastic bag where all the confiscated items were put. Besinio sat in a corner
of the nipa house and prepared in his own handwriting the PAGPAPATUNAY
(Exhibit "B") attesting to the result of the search conducted by the NARCOM team
listing thereon the different confiscated items, another PAGPAPATUNAY (Exhibit
"C") attesting to the lawful manner the search was conducted, and the Receipt
(Exhibit "D"), all dated February 23, 1991. Said exhibits were alternately given to
Calabia who read the contents thereof before voluntarily affixing his signatures
thereon. Then, he explained to Redentor and Pagtakhan the contents of said
exhibits. Afterwhich, Redentor likewise voluntarily affixed his signatures thereon.
(Exhibits B-1, C-1 and D-3). Pagtakhan also affixed his signatures on Exhibit "B" and
"D" opposite the items confiscated in his possession by Evangelista. A certain
Angelito Ancot affixed his signature on Exhibits B and C also as witness. Redentor
was then given a copy each of Exhibits B, C and D (Exhibits B-4, C-4 and D-4).
Subsequently, Calabia and the Narcom team left the Dichoso residence. Said team
brought with them for further investigation at their headquarters Redentor, Pagtakhan
and the two other persons found inside the nipa house. Said two other persons who
were later known to be a certain "Jun" and a certain Bayani Salamat were set free by
the Narcom after having convinced the investigators that they were innocent visitors
or house guests of Redentor. Evangelista prepared a letter addressed to the PNP
Crime Laboratory, Camp Vicente Lim, Calamba, Laguna, requesting examination of
the confiscated drugs. At about 9:50 P.M. of that same day accused Redentor and
Pagtakhan executed their separate waivers under Article 125 of the Revised Penal
Code with the assistance of counsel (Exhibits "J" and "K").

On February 25, 1991 (Monday) the Narcom made a return of the search warrant
and inventory to the Court (Exhibit E).

On February 26, 1991 (Tuesday) Besinio handcarried the confiscated items to the
PNP Crime Laboratory (Exhibits "L" and "L-2") for examination. That same day
P/Major Rosalinda L. Royales, Forensic Chemist concluded, after qualitative
examination, that the one (1) transparent plastic bag containing 1.3 grams of
suspected methamphetamine hydrochloride (sic) (shabu) placed in a plastic bag with
markings and the six (6) foils containing 0.3 grams of suspected metamphetamine
hydrochloride (sic) (shabu) wrapped in a foil and placed in a plastic bag with
markings gave positive results for methamphetamine hydrochloride (sic) (shabu).
Additionally, the one (1) aluminum foil containing 0.02 grams of methamphetamine
hydrochloride (sic) (shabu) placed in a plastic bag with markings as confiscated from
Pagtakhan gave positive results for methamphetamine hydrochloride [sic] (shabu)
and the one (1) light green plastic bag containing 103.7 grams of suspected dried
 marijuana fruiting tops, crushed leaves and seeds wrapped in a newspaper gave
positive results for marijuana (Exhibits M, series).6

On 17 June 1991, the trial court promulgated its decision,7 dated 11 June 1991, finding Jaime
Pagtakhan and Redentor Dichoso guilty as charged. The dispositive portion of the decision reads:

On the basis of the evidence on record, the Court finds that Redentor Dichoso
violated Section 15, Article III and Section 4, Article II of the Dangerous Drugs Act.
Also, it is the finding of the Court that Jaime Pagtakhan violated Section 16 of said
Act. Both of them should be made to suffer the consequences of their unlawful acts.

WHEREFORE, premises considered, the Court hereby renders judgment in Criminal

Case No. 6710-SP finding JAIME PAGTAKHAN guilty beyond reasonable doubt of
the offense charged in the Information, hereby sentences him to suffer the straight
penalty of Six (6) years and one (1) of prision mayor and to pay the costs. In case he
files an appeal, the bailbond for his provisional liberty is hereby fixed at double the
amount of his present bailbond.

In Criminal Cases Nos. 6711-SP and 6712-SP, the Court hereby renders judgment
finding accused REDENTOR DICHOSO y DAGDAG guilty beyond reasonable doubt
of the offenses charged in the Informations, hereby sentences him to suffer the
penalty of reclusion perpetua with all its accessory penalties, to pay a fine of
P20,000.00 and the costs of suit.8

Acting upon the ex-parte motion of the Assistant City Prosecutor, the trial court, in its Order of 25
June 1991, 9clarified the sentence imposed on accused Dichoso by declaring that the sentence
of reclusion perpetua refers to each of the two (2) cases against him, and amended the decision by
inserting the words "in each case" after the words "to suffer" and before the words "the penalty" in
the decretal portion thereof.

Accused Redentor Dichoso filed a Notice of Appeal. 10

The records does not disclose that accused Jaime Pagtakhan appealed from the decision. The
transmittal letter of the clerk of court of the RTC, dated 7 August 1991, does not make any reference
to Criminal Case No. 6710-SP(91) and its original record was not forwarded to this Court. 11

Nevertheless, the docket section of this Court entered in the docket the three (3) criminal cases in
the court below and numbered them as G.R. Nos. 101216-18, erroneously including in the cover of
the rollo the name of Jaime Pagtakhan as an accused-appellant.

In the Appellant's Brief filed on 5 February 1992, 12 accused Redentor Dichoso, henceforth referred
to as the Appellant, urges this Court to reverse the decision because the trial court erred in:

I. . . . NOT QUASHING SEARCH WARRANT NO. 028 AND DISMISSING THE

CASE AGAINST THE ACCUSED.

II. . . . CONVICTING THE ACCUSED ON THE BASIS OF ILLEGALLY SEIZED

AND/OR PLANTED EVIDENCE.

III. . . . ADMITTING PROSECUTION'S EXHIBITS B, C AND D WITHOUT THE

ACCUSED BEING ASSISTED BY COUNSEL.
 IV. . . . CONVICTING THE ACCUSED ON THE BASIS OF EVIDENCE
INSUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.

V. . . . COMPLETELY DISREGARDING ACCUSED'S EVIDENCE THAT THE LAND

AND NIPA HUT FROM WHERE THE PROHIBITED, REGULATED (sic) AND SETS
OF PARAPHERNALIAS (sic) WERE ALLEGEDLY CONFISCATED BELONG TO
ANOTHER PERSON. 13

In support of the first and second assigned errors which are jointly discussed, appellant contends
that Search Warrant No. 028, obtained and executed by the NARCOM agents, is a general warrant
because it was issued for "Violation of RA 6425 known as the Dangerous Drugs Act of 1972 as
amended" and did not specify the particular offense which he violated under the said law, contrary to
the requirements prescribed by the Constitution and the Rules of Court, and that it was issued in
violation of Section 3, Rule 126 of the Rules of Court which provides that "no search warrant shall
issue for more than one specific offense." It was, he asserts, issued for three (3) possible
offenses, viz.: (a) illegal possession of marijuana dried leaves, (b) illegal possession of
methamphetamine hydrochloride, and (c) illegal possession of opium pipe and other paraphernalia
for prohibited drug. He then argues, following this Court's ruling in Stonehill vs. Diokno 14 which
condemned general warrants and barred the admission of any evidence obtained by virtue thereof,
that the articles seized from the nipa house could not be used as evidence against him and be made
the basis of his conviction.

Appellant further claims that he was framed by the police officers. He states that a certain Jun
planted the deck of shabu found on the table where he and his companions were gathered around.
Jun allegedly placed the shabu there after asking permission to use it, then he went out to meet Sgt.
Evangelista and the members of the NARCOM team outside the house. Jun purportedly did not
return to the hut anymore, leaving his friend Bayani Salamat behind. Appellant and Jaime Pagtakhan
were also allegedly handcuffed immediately, while Salamat was not and was, in fact, released
without being interrogated. To bolster his claim, appellant cites the testimony of Barangay Captain
Calabia that the search which yielded the shabu, marijuana and drug paraphernalia was conducted
even before his arrival, that when he arrived, the seized articles were already on the table, and that
the appellant was already handcuffed. Calabia also assailed the veracity of Exhibits "B," "C" and "D".

In his third assignment of error, appellant contends that (1) Exhibit "B" (a "Pagpapatunay" attesting
to the result of the search conducted by the NARCOM team and listing the items confiscated), (2)
Exhibit "C" (a "Pagpapatunay" attesting to the lawful manner of the search), and (3) Exhibit "D" (the
Receipt for Property Seized) are inadmissible in evidence since he signed them while under police
custody without having been accorded his Constitutional rights to remain silent and to counsel.
These exhibits, he argues, constitute uncounselled extrajudicial confessions.

In his fourth assignment of error, appellant alleges that he cannot be convicted for violation of R.A.
No. 6425, as amended, for unlawfully selling, delivering and giving away to another, and distributing
1.3 grams of methamphetamine hydrochloride (shabu) and dried marijuana leaves, fruit tops and
seeds since he was not caught "in flagrante." He posits the view that in the light of the definition of
"delivering" and "selling" in Section 2 of the Act, only the overt acts of unlawfully selling, delivering,
dispensing, transporting and distributing prohibited and regulated drugs are punishable under
Sections 4 and 15 of the said Act, respectively. He points out that according to Article 3 of the
Revised Penal Code, mere intention is not a crime. He further argues that Exhibit "F" cannot be a
basis for his conviction because (1) the alleged transactions mentioned therein are undetermined
and could refer to a loan, chattel mortgage or sale, but not to the dispensing and delivering of shabu
and marijuana as the lower court presumed; (2) the names of Redentor Dichoso of "Redy Dichoso"
and Sonia Dichoso appearing in the said notebook were entered or written by CIC Orlando Besinio
himself, and without such entry, there is nothing therein which would associate it with the appellant;
and (3) it is inadmissible in evidence because it is not among the items particularized in the search
warrant. He concludes this assigned error with a claim that the trial court erred in holding that a
considerable quantity of shabu and marijuana was found in his residence because 1.3 grams of
shabu and six (6) decks of aluminum foil of shabu can by no means be characterized as
"considerable," especially taking into account his admission that he sometimes uses shabu.

In his last assigned error, appellant asserts that the nipa house and the lot where it is located do not
belong to him but to his brother, Abner Dichoso, hence, the search conducted therein was
unconstitutional and illegal and the items obtained thereby are inadmissible in evidence against him.

Appellee, thru the Office of the Solicitor General, refutes the arguments raised by the appellant and
prays that We affirm the assailed decision.

We shall now pass upon the assigned errors and the arguments adduced in support thereof.

On the validity of the search warrant: In its entirety, the search warrant in question reads as follows:

Republic of the Philippines

REGIONAL TRIAL COURT
4th Judicial Region, Branch 30
San Pablo City

People of the Philippines,

Plaintiff,

-versus- SEARCH WARRANT No. 028

REDENTOR DICHOSO -for-

and SONIA DICHOSO
of Farconville Sub., VIOLATION OF RA 6425
Phase II, San Pablo known as the "Dangerous
City, Drugs Act of 1972" as amended

Respondents.

SEARCH WARRANT

TO ANY OFFICER OF THE LAW:

G r e e t i n g s:

It appearing to the satisfaction of the undersigned after examining under oath, T/Sgt.
Iluminada S. Evangelista and his witness Marlon Alcayde that there is probable
cause to believe that the above-named defendants are illegally in possession of
undetermined quantity/amount of dried marijuana leaves and Methamphetamine
Hydrochloride (Shabu) and sets of paraphernalias (sic) stored inside the nipa hut
within the compound of their residence at Farconville Sub., Phase II, San Pablo City
which should be seized and brought to the undersigned.
 You are hereby commanded to make an immediate search at reasonable hour of the
day or night of the premises above-described and forthwith seize and take
possession of the above-stated marijuana leaves, shabu and sets of paraphernalias
(sic) and bring the same to the undersigned to be dealt with as the law directs.

Witness my hand this 22nd day of February, 1991, at San Pablo City.

(SGD.) J. AUSBERTO B.
JARAMILLO, JR.
(TYP) J. AUSBERTO B. JARAMILLO,
JR.
Judge 15

It is clear that the search warrant cannot be assailed as a general search warrant because while it is
for "Violation of RA 6425 known as the "Dangerous Drugs Act of 1992 as amended," the body
thereof, which is controlling, particularizes the place to be searched and the things to be seized, and
specifies the offense involved, viz., illegal possession of marijuana and shabu and paraphernalia in
connection therewith. These are evident from the clause, "are illegally in possession of
undetermined quantity/amount of dried marijuana leaves and methamphetamine Hydrochloride
(Shabu) and sets of paraphernalias stored inside the nipa hut within the compound of their residence
at Farconville Sub., Phase II, San Pablo City."

Appellant's contention that the search warrant in question was issued for more than one (1) offense,
hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in
semantic juggling by suggesting that since illegal possession of shabu, illegal possession of
marijuana and illegal possession of paraphernalia are covered by different articles and sections of
the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific
offense. In short, following this theory, there should have been three (3) separate search warrants,
one for illegal possession of shabu, the second for illegal possession of marijuana and the third for
illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is
a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and
"regulated" drugs and defines and penalizes categories of offenses which are closely related or
which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly
issued for the said violations of the Dangerous Drugs Act.

In Olaes vs. People, 16 which was cited by the Solicitor General, We sustained a search warrant
similarly captioned and rejected the argument of the petitioner therein that it was a general warrant,
thus:

The petitioners claim that the search warrant issued by the respondent judge is
unconstitutional because it does not indicate the specific offense they are supposed
to have committed. There is, therefore, according to them, no valid finding of
probable cause as a justification for the issuance of the said warrant in conformity
with the Bill of Rights. In support of this argument, they cite Stonehill v. Diokno,
where Chief Justice Concepcion struck down the search warrants issued therein for
being based on the general allegation that the petitioners had committed violations of
"Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised
Penal Code." . . .

xxx xxx xxx

 We have examined the search warrant issued in the instant case and find it does not
come under the strictures of the Stonehill doctrine. In the case cited, there was a
bare reference to the laws in general, without any specification of the particular
sections thereof that were alleged to have been violated out of the hundreds of
prohibitions contained in such codifications. There is no similar ambiguity in the
instant case.

While it is true that the caption of the search warrant states that it is in connection
with "Violation of RA 6425, otherwise known as the Dangerous Drugs Act of 1972," it
is clearly recited in the text thereof that 'There is probable cause to believe that
Adolfo Olaes alias "Debie" and alias "Baby" of No. 628 Comia St., Filtration, Sta.
Rita, Olongapo City, has in their possession and control and custody of marijuana
dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt
narcotics preparations which is the subject of the offense stated above." Although the
specific section of the Dangerous Drugs Act is not pinpointed, there is no question at
all of the specific offense alleged to have been committed as a basis for the finding
for probable cause. The search warrant also satisfies the requirement in the Bill of
Rights of the particularity of the description to be made of the "place to be searched
and the persons or things to be seized."

The rationale We laid down in Prudente vs. Dayrit 17 holds true in the instant case. There, We upheld
the validity of a search warrant assailed as having been allegedly issued for more than one (1)
offense since it did not contain any reference to any particular provision of P.D. No. 1866 that was
violated, when allegedly P.D. No. 1866 punishes several offenses. We said:

In the present case, however, the application for search warrant was captioned: "For
violation of PD No. 1866 (Illegal Possession of Firearms, etc.)." While the said
decree punishes several offenses, the alleged violation in this case was, qualified by
the phrase "illegal possession of firearms, etc." As explained by respondent Judge,
the term, "etc." referred to ammunitions and explosives. In other words, the search
warrant was issued for the specific offense of illegal possession of firearms and
explosives. Hence, the failure of the search warrant to mention the particular
provision of PD No. 1866 that was violated is not of such a gravity as to call for its
invalidation on this score.

Besides, while illegal possession of firearms is penalized under Section 1 of PD No.

1866 and illegal possession of explosives is penalized under Section 3 thereof, it
cannot be overlooked that said decree is a codification of the various laws on illegal
possession of firearms, ammunitions and explosives; such illegal possession of items
destructive of life and property are related offenses or belong to the same species,
as to be subsumed within the category of illegal possession of firearms, etc. under
P.D. No. 1866. . . .

We, therefore, agree with the Solicitor General that the search warrant in question contains fatal
infirmity that may justify its invalidation.

Since Search Warrant No. 028 is valid, the articles seized by virtue of its execution may be admitted
in evidence. Consequently, the trial committed no error in denying the appellant's motion to quash
the said warrant and refusing to dismiss the informations filed against him.

Frame-Up: This Court rejects the appellant's claim that he was framed. This defense requires strong
and convincing evidence because of the presumption that the law enforcement agents acted in the
regular performance of their official duties. 18 Appellant failed to rebut this presumption. He did not
even attempt to prove that the NARCOM agents who obtained the search warrant, conducted the
search and recovered the prohibited drugs had motives other than to enforce the law and stem the
menace of drug addiction and trafficking which has already reached an alarming level and has
spawned a network of incorrigible, cunning and dangerous operations. 19 It may be stressed here that
the defense of frame-up can be easily fabricated and the accused in drugs cases almost always take
refuge in such a defense. 20

Furthermore, as correctly noted by the Solicitor General, appellant's claim of a frame-up only
concerns the deck of shabu allegedly taken out of the pocket of one Jun who asked for and was
readily permitted by the appellant to use shabu on that occasion. It does not concern, much less
explain, the origin of the other prohibited drugs and paraphernalia seized during the search.

Admissibility of Exhibits "B," "C" and "D": There is merit to the appellant's claim that Exhibits "B," "C"
and "D" partake of the nature of uncounselled extrajudicial confessions made while under the
custody of the NARCOM agents and, therefore, violative of Section 12, Article III of the 1987
Constitution. 21 These exhibits are not "simply inventories or receipts of articles seized from
appellant" as the appellee wants this Court to believe. 22 A clearer examination thereof shows that
CIC Rolando Bisenio, who prepared them, deliberately wrote, in bold letters below the name
REDENTOR D. DICHOSO (over which the appellant was made to sign) the words "MAY-ARI" in
Exhibit "B" and "MAY-ARI BAHAY" in Exhibit "C," while the word "OWNER" is printed below the sub-
heading "COPY OF THE RECEIPT RECEIVED" in Exhibit "D." By such descriptive words, appellant
was in fact made to admit that he is the owner of the articles seized (Exhibit "B"), the house
searched (Exhibit "C") and the articles inventoried in the receipt (Exhibit "D"). Thus, while it may be
true that the appellant was not asked specific questions regarding the vital issue of ownership,
Bisenio obtained an admission from the former through the said exhibits. This was a clever way of
circumventing the aforesaid Constitutional rights to counsel and to remain silent. Admittedly, at the
time Bisenio prepared the exhibits, the appellant was already in the effective custody of the
NARCOM agents deprived in a significant way of his freedom of action. The preparation of the
exhibits substituted, for all legal intents and purposes, the custodial interrogation.

There was no need of requiring the appellant to sign documents similar to Exhibits "B" and "C." As to
Exhibit "D," which is the receipt for property seized, it is a document required by Section 10, Rule
126 of the Rules of Court to be given by the seizing officer to the lawful occupant of the premises in
whose presence the search and seizure were made. It is true that in People vs. Olivares, 23 We made
the following statements:

Exhibits "A" and "L" which identically show the specimen signatures, are also
admissible. These documents are part and parcel of a mandatory and normal
procedure followed by the apprehending and seizing police officers. In these three
Exhibits, the accused-appellant did not give any statement against his own interest.
The mere signing of documents did not amount to Olivares' subjection to a custodial
investigation wherein an accused is required to give statements about his
involvement in the offense and wherein the right to be informed of his rights to
silence and to counsel would otherwise be invoked. (People v. Rualo, 152 SCRA 635
[1987]). Guilt is proved by other evidence.

Yet, as explicitly indicated therein, Olivares "did not give any statement against his own interest,"
unlike in the case of the appellant whose name Bisenio described as the owner.

Nevertheless, the above discussions do not alter the result of this appeal. As correctly stated by the
appellee, these exhibits were not appreciated by the trial court as extrajudicial confessions but
merely as proof that the articles therein enumerated were obtained during the search which, by the
way, was sufficiently established by the testimonies of the NARCOM agents independently of the
said exhibits.

Seizure of Exhibit "F": It is contended by the appellant that Exhibit "F," the brown notebook
containing the entries of names and figures, should not have been admitted in evidence because it
was not one of those specifically mentioned in the warrant, hence, its seizure was unjustified. This
so-called warrant rule — that only those listed in the search warrant may be seized — which the
appellant claims to have been enunciated in 1920 in Uy Khetin vs. Villareal. 24 and which he now
summons to his rescue, is not without exceptions. Among such exceptions is the plain view doctrine
enunciated in Harris vs. United States 25 and Coolidge vs. New Hampshire 26 which has been adopted
in our jurisdiction. 27

In Harris, the Federal Supreme Court of the United States of America ruled:

It has long been settled that objects falling in the plain view of an officer who has a
right to be in the position to have that view are subject to seizure and may be
introduced in evidence. Ker v. California, 374 US 23, 42-43, 10 L ed 2nd 726, 743,
83 S Ct 1623 (1963); United States v. Lee, 274 US 559, 71 L ed 2nd 1202, 47 S Ct
746 (1927); Hestor v. United States, 265 US 57, 68 L ed 2d 898, 44 S Ct 445 (1924).

We are not, however, inclined to rule that the foregoing exception applies to this case, for the reason
that the search warrant was not for unlawful sale of shabu or marijuana but for unlawful possession
thereof as shall be hereinafter discussed and that the notebook per se is not an article possession of
which is illegal or criminal. Exhibit "F" proves neither sale nor possession.

Ownership of the House Searched: The view of the appellant that the search was illegal and the
articles seized thereby cannot be used against him in evidence since he does not own the nipa
house searched or the lot wherein it was built, is unmeritorious. It is not necessary that the property
to be searched or seized should be owned by the person against whom the search warrant is
issued; it is sufficient that the property is under his control or possession. 28 It was established, even
by the defense's own evidence, that the appellant and his spouse have been using the said nipa
house. He admitted that the nipa house is actually part of and adjacent to the big or main house in
the Dichoso residential compound, and that he and his family have been using the nipa house as a
resting place even before the search. 29

Any doubt as to the appellant's control over the nipa house where the seized articles were recovered
is wiped out by the testimony of the defense's own witness, Francisco Calabia, who affirmed that the
appellant and his wife Sonia Dichoso actually reside therein while Redentor's parents and brother
reside in the big house. 30

And now to the culpability of the appellant. He contends that he could not be held guilty under
Section 15, Article III (for unlawful sale of shabu) and under Section 4, Article II (unlawful sale of
marijuana) of the Dangerous Drugs Act in Criminal Case No. 6711-SP (91) and Criminal Case No.
6712-SP(91), respectively, because he was not caught in the act of selling or delivering shabu and
marijuana, and that the finding of guilt against him was based solely on Exhibit "F" which, according
to the trial court, "contains conclusive proof of Redentor's unlawful business of selling shabu and
marijuana to customers, which included Pagtakhan and Bayani Salamat."

After a careful review and evaluation of the evidence on record, this Court finds that the evidence of
the prosecution is insufficient to sustain a conviction for unlawful sale of shabu in Criminal Case No.
6711-SP (91) and for unlawful sale of marijuana in Criminal Case No. 6712-SP (91). There is,
however, overwhelming evidence which establishes with moral certainty the guilt of the appellant
for illegal possession of shabu and marijuana under Section 16, Article III and Section 8, Article II,
respectively, of the Dangerous Drugs Act of 1972, as amended.

In convicting the appellant as charged, the trial court relied mainly on Exhibit "F", which it considered
as "conclusive proof" of the appellant's drug pushing, and the ruling in People vs. Toledo. 31 It said:

Redentor may claim that no evidence exists to show that he was drug pushing i.e.,
selling, delivering, giving way (sic) to another and distributing shabu and marijuana.
The Court is not convinced. Exhibits "F" among other things was found inside his
nipa house where, according to Calabia, the said spouses reside. Redentor
exercised control and custody of Exhibit F. He is commonly referred to by his
nickname "Redy" which incidentally appears in some pages of Exhibits F.
Pagtakhan, on the other hand, answers to the nickname "Jimmy" which also appears
in Exhibit F. Bayani Salamat, one of the companion (sic) of Redentor inside the nipa
house at the time the Narcom agents arrived, also appears to be a customer of
Redentor (see pages 2 and 3 reverse side of page 5, Exhibits "F"). Redentor,
according to Pagtakhan, is called for (sic) his nickname "Redy". That name appears
on Exhibit F (see pages 2, 3, 4, and 5, thereof). The Court finds and so holds that
Exhibit F contains conclusive proof of Redentor's unlawful business of selling shabu
and marijuana to customers which includes Pagtakhan and Bayani Salamat. . . ..
Furthermore, there is a considerable quantity of shabu and marijuana taken by the
Narcom agents from the residence of Redentor which strongly indicates an intention
of the part of Redentor to sell, distribute and deliver said dangerous and regulated
drugs without being authorized by law (People vs. Toledo, 140 SCRA 259). 32

We find, however, that the conclusions drawn from Exhibit "F" are merely conjectural. For one, the
prosecution did not attempt, and thus failed, to prove that the handwritten entries therein were made
by the appellant. It could have easily done so by presenting, in accordance with the Rules, either a
handwriting expert or an ordinary witness familiar with the handwriting of the appellant. 33 There is, as
well, no competent proof that the said entries refer to transactions regarding shabu or marijuana and
that the figures appearing therein pertain to prices of dangerous drugs.

The facts in the instant case do not warrant the application of People vs. Toledo, 34 which the trial
court and the appellee cited as authority. While in that case, this Court stated that the possession of
a considerable amount of a prohibited drug (three (3) plastic bags of marijuana) coupled with the fact
that the accused was not a user of the prohibited drug, indicate nothing except the intention to sell
and distribute it, the conviction of Toledo for violation of Section 4 of the Dangerous Drugs Act of
1972, as amended, was not based on that ground alone, but on the accused's extrajudicial
confession, held to be valid and admissible, wherein he disclose the details of his transactions of
buying and selling marijuana by narrating how and from whom he bought the three (3) plastic bags
of marijuana found in his possession, to whom he would sell it, and for how long he had been
engaged in pushing prohibited drugs. In the instant case, appellant disclaims ownership of Exhibit
"F" and avers that the names Redentor and Sonia Dichoso written on several pages thereof were
actually written by prosecution witness CIC Orlando Bisenio. 35 Other than exhibit "F," there is no
evidence of sale, delivery, distribution or transportation of prohibited drugs by the appellant.

The other case cited by the appellee, People vs. Claudio, 36 is of no help to the prosecution. In that
case, the accused was convicted of the violation of Section 4 of R.A. No. 6425 for her act
of transporting marijuana and not of selling or delivering the same, thus:
 Claudio contends that there was no delivery as there was no recipient of the
prohibited drugs. Therefore, she may not be convicted under Sec. 4 of Rep. Act No.
6425.

The contention is without merit. A closer perusal of the subject provision shows that it
is not only delivery which is penalized but also the sale, administration, distribution
and transportation of prohibited drugs. Claudio was caught transporting 1.1 kilos of
marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4. 37

In a prosecution for illegal sale of marijuana, what is material is the proof that the selling transaction
transpired coupled with the presentation in court of the corpus delicti as evidence, 38 and that to
sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established. 39

In the case at bar, not a single witness of the prosecution, not even Sgt. Evangelista, claims to have
seen the appellant sell or deliver shabu or marijuana to anybody. Although Sgt. Evangelista testified
that he was sold by his civilian informer or agent that the latter was able to buy shabu from and was
offered marijuana by the appellant, the said civilian informer, who was presented by the NARCOM
when it applied for a search warrant, was not presented in court during the trial of the cases below.

The unlawful sale of shabu or marijuana must be established by unequivocal and positive
evidence. 40

There is no doubt, however, that the appellant is guilty of unlawful possession of shabu under
Section 16, Article III and unlawful possession of marijuana under Section 8, Article II of the
Dangerous Drugs Act of 1972, as amended, in Criminal Case No. 6711-SP (91) and Criminal Case
No. 6712-SP (91), respectively. The crime of unlawful possession of shabu, a regulated drug, under
Section 16 is necessarily included in the crime of unlawful sale thereof under Section 15. Similarly,
the crime of unlawful possession of marijuana under Section 8 is necessarily included in the crime of
unlawful sale of marijuana under Section 4 of the Act. 41

The appellant cannot evade liability for illegal possession of dangerous drugs by his admission that
he sometimes uses shabu. Section 30 of R.A. No. 6425, which provides that a drug dependent who
voluntarily submits himself for confinement, treatment and rehabilitation in a center, shall not be
criminally liable for any violation of Section 8 and Section 16 of the law, does not apply to the
appellant because occasional "use" of a dangerous drug is not the same as "drug dependence"
which is defined as "a state of psychic or physical dependence, or both, on a dangerous drug,
arising in a person following administration or use of that drug on a periodic or continuous
basis." 42Throughout the trial of the case below, the appellant, whose petition for bail due to health
reasons was denied, he has not been shown to be a drug dependent and even if he was, indeed, a
drug dependent, he did not voluntarily submit himself for rehabilitation as required by the law.

On the contrary, appellant's admission during the trial that he used shabu "once in a while" 43 only
helps ensure his conviction for violation of Section 16 of the Dangerous Drugs Act because the
unauthorized use of a regulated drug like shabu is one of the acts punishable under the said section.

The penalty for illegal possession of regulated drugs like shabu is "imprisonment ranging from six
years and one day to twelve years and a fine ranging from six thousand to twelve thousand
pesos." 44 The same penalty is provided for illegal possession of marijuana, a prohibited drug. 45 The
Indeterminate Sentence Law 46 should, however, be applied. It provides that in imposing a prison
sentence for an offense punished by a law other than the Revised Penal Code, the court shall
sentence the accused to an indeterminate sentence, the minimum term of which shall not be less
than the minimum fixed by law and the maximum of which shall not exceed the maximum term
prescribed by the same.

WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court of San
Pablo City, dated 11 June 1991, in Criminal Cases Nos. 6711-SP (91) and 6712-SP (91) is hereby
modified. As modified, accused-appellant REDENTOR DICHOSO y DAGDAG is hereby found guilty
beyond reasonable doubt of violation of Section 16, Article III of the Dangerous Drugs Act of 1972
(R.A. No. 6425), as amended, in Criminal Case No. 6711-SP (91) and Section 8 of Article II of the
said Act in Criminal Case No. 6712-SP (91). Applying the Indeterminate Sentence Law, he is hereby
sentenced in each case to suffer the penalty of imprisonment ranging from eight (8) years as
minimum to twelve (12) years as maximum, and to pay a fine of Twelve Thousand Pesos
(P12,000.00).

Costs against the accused-appellant.

SO ORDERED.
 FIRST DIVISION

G.R. No. 93828 December 11, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SANTIAGO EVARISTO and NOLI CARILLO, accused-appellants.

PADILLA, J.:

This is an appeal from the decision of the Regional Trial Court of Trece Martires, Cavite, * in
Criminal Case No. NC-267, entitled "People of the Philippines v. Santiago Evaristo and Noli Carillo,"
finding the accused guilty of illegal possession of firearms in violation of Presidential Decree No.
1866 and accordingly sentencing them to the penalty of life imprisonment.

The information indicting the accused-appellants (hereinafter referred to as the appellants) reads:

The undersigned Assistant Provincial Fiscal accuses SANTIAGO EVARISTO AND

NOLI CARILLO of the crime of VIOLATION of P.D. 1866, committed as follows:

That on or about the 23rd. day of August 1988, in the Municipality of Mendez,
Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused being private persons not authorized by law did then and
there, willfully, unlawfully and feloniously manufacture, repair and kept (sic) in their
possession, custody and control one (1) caliber 38 revolver (paltik) with two live
ammunition and one (1) empty shell of said caliber, two (2) 12 gauge home made
shot guns, one (1) caliber 22 revolver (sumpak) and two (2) vise grips and one (1)
plier use (sic) in the manufacture and repair of said firearms without any permit or
license from competent (sic) authority.

CONTRATRY (sic) TO LAW.

Cavite City, August 30, 1988. 1

Appellants having entered a plead of not guilty, trial thereupon commenced, with the prosecution
and the defense presenting their respective witnesses and evidence to support their divergent
versions of the events leading to the arrest of the appellants.

A careful review of the records and the testimony of the prosecution witnesses, Sgt. Eladio
Romeroso and CIC Edgardo Vallarta of the Philippine Constabulary, indicates that on the day in
question, a contingent composed of Romeroso and Vallarta, together with a Sgt. Daniel Maligaya,
also of the Philippine Constabulary, and two (2) members of the Integrated National Police, were on
routine patrol duty in Barangay III, Mendez, Cavite. At or about 5:50 in the afternoon, successive
bursts of gunfire were heard in the vicinity. Proceeding to the approximate source of the same, they
came upon one Barequiel Rosillo who was firing a gun into the air.
Seeing the patrol, Rosillo ran to the nearby house of appellant Evaristo prompting the lawmen to
pursue him. Upon approaching the immediate perimeter of the house, specifically a cement
pavement or porch leading to the same, the patrol chanced upon the slightly inebriated appellants,
Evaristo and Carillo. Inquiring as to the whereabouts of Rosillo, the police patrol members were told
that he had already escaped through a window of the house. Sgt. Vallarta immediately observed a
noticeable bulge around the waist of Carillo who, upon being frisked, admitted the same to be a .38
revolver. After ascertaining that Carillo was neither a member of the military nor had a valid license
to possess the said firearm, the gun was confiscated and Carillo invited for questioning.

As the patrol was still in pursuit of Rosillo, Sgt. Romeroso sought Evaristo's permission to scour
through the house, which was granted. In the sala, he found, not Rosillo, but a number of firearms
and paraphernalia supposedly used in the repair and manufacture of firearms, all of which,
thereafter, became the basis for the present indictment against Evaristo.

For their part, the appellants dispute the above narration of the events in question, alleging that they
were forcibly taken into custody by the police officers and even subjected to physical and mental
indignities. They denied ownership or knowledge of any of the firearms presented in evidence,
contending that these were purposely planted in their possession by the prosecution witnesses and
other police authorities.

After evaluation of all the evidence, the trial court rendered the now-assailed decision dated 18 April
1990, the dispositive portion of which reads:

Wherefore, for having possessed firearms in violation of P.D. No. 1866, accused
Santiago Evaristo and Noli Carillo are hereby sentenced to serve the penalty
provided for under Sec. 1 thereof. The full period of their preventive imprisonment
shall be deducted from the aforementioned penalty.

With costs de oficio.

SO ORDERED. 2

Hence, this petition, assigning the following as errors of the trial court:

1. The lower court gravely erred in admitting Exhibits "B" to "F" in evidence
considering that those are illegally seized evidence;

2. The lower court gravely erred in finding that said illegally seized evidence are
firearms as contemplated in Presidential Decree No. 1866; and

3. The lower court gravely erred in giving credence to the arresting officer's
testimonies which are patently contradictory and half truths (sic) testimonies. 3

First, on the issue of illegal search. The pertinent rule on the matter is Article III of the Constitution,
the relevant portion of which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined 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.

Sec. 3. (1) . . . .

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

It is to be noted that what the above constitutional provisions prohibit are unreasonable searches
and seizures. For a search to be reasonable under the law, there must, as a rule, be a search
warrant validly issued by an appropriate judicial officer. Yet, the rule that searches and seizures
must be supported by a valid search warrant is not an absolute and inflexible rule, for jurisprudence
has recognized several exceptions to the search warrant requirement. Among
these exceptions is the seizure of evidence in plain view, adopted by this jurisdiction from the
pronouncements of the United States Supreme Court in Harris vs. U.S.4 and Coolidge vs. New
Hampshire. 5 Thus, it is recognized that objects inadvertently falling in the plain view of an officer
who has the right to be in the position to have that view, are subject to seizure and may be
introduced in evidence. 6

The records in this case show that Sgt. Romerosa was granted permission by the appellant Evaristo
to enter his house. The officer's purpose was to apprehend Rosillo whom he saw had sought refuge
therein. Therefore, it is clear that the search for firearms was not Romerosa's purpose in entering the
house, thereby rendering his discovery of the subject firearms as inadvertent and even accidental.

With respect to the firearms seized from the appellant Carillo, the Court sustains the validly of the
firearm's seizure and admissibility in evidence, based on the rule on authorized warrantless arrests.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

For purposes of the present case, the second circumstance by which a warrantless arrest may be
undertaken is applicable. For, as disclosed by the records, the peace officers, while on patrol, heard
bursts of gunfire and this proceeded to investigate the matter. This incident may well be within the
"offense" envisioned by par. 5 (b) of Rule 113, Rules of Court. As the Court held in People of the
Philippines v. Sucro, 7 "an offense is committed in the presence or within the view of an officer, within
the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense,
although at a distance, or HEARS THE DISTURBANCES CREATED THEREBY AND PROCEEDS
AT ONCE TO THE SCENE THEREOF."8
The next inquiry is addressed to the existence of personal knowledge on the part of the peace officer
of facts pointing to the person to be arrested as the perpetrator of the offense. Again, reference to
the records resolves said query. Giving chase to Rosillo, the peace officers came upon the two (2)
appellants who were then asked concerning Rosillo's whereabouts. At that point, Sgt. Vallarta
discerned the bulge on the waist of Carillo. This visual observation along with the earlier report of
gunfire, as well as the peace officer's professional instincts, are more than sufficient to pass the test
of the Rules. Consequently, under the facts, the firearm taken from Carillo can be said to have been
seized incidental to a lawful and valid arrest.

The next area to be addressed is the allegation of the appellants that the statute's coverage does not
extend to firearms that are not functional or serviceable. The Court does not agree.

Section 1 of P.D. No. 1866 penalizes "any person who shall unlawfully manufacture, deal in, acquire,
dispose, orpossess 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." 9 It is clear that the
law makes no distinction as to serviceable or functional firearms. Indeed, the possession of even a
part of a firearm is sufficient to come within the prohibitive ambit of the statute. Ubi lex non distinguit
nec nos distinguere debemus.

Lastly, the appellants challenge the veracity of the testimonies of the prosecution witnesses,
maintaining that these were inconsistent with each other, thereby giving rise to the conclusion that
the entire incident was a contrivance on their part. Specifically, they point to the apparent conflict in
the statement of the prosecution witnesses that there were only three (3) individuals in the vicinity
(aside from the peace officers) as opposed to the testimony of another peace officer, testifying as a
hostile witness, that aside from the appellants, and Rosillo, there were also other people in the
vicinity, such as Evaristo's mother, brother and other farmers.

The Court sees no such conflict. A recourse to the trial court proceedings easily shows that the two
(2) prosecution witnesses, Sgt. Romerosa and CIC Vallarta, testified in a straightforward and candid
manner, categorically identifying the appellants as the two (2) individuals they had apprehended and
clearly narrating the circumstances of such apprehension. The defense has given no possible
reason or motivation for these peace officers to make false accusations against the appellants.
Absent the presentation of such defense evidence, the testimony of the peace officers should
deserve full credence.

WHEREFORE, the judgment of the trial court of Trece Martires, Cavite in Criminal Case No. NC-267
finding the accused Santiago Evaristo and Noel Carillo guilty beyond reasonable doubt for Illegal
Possession of Firearms as defined in Presidential Decree No. 1866, is hereby AFFIRMED.

The Court orders the forfeiture of the firearms and other incidental paraphernalia found in the
possession of the appellants, in favor of the Philippine National Police (PNP) to be disposed of in
accordance with law.

No pronouncement as to costs.

SO ORDERED.
 FIRST DIVISION

G.R. No. 76005. April 23, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused,
RESTITUTO B. BOCALAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR

POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF
THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR
ARREST OR WARRANT. — There are indeed instances where search and seizure can be effected
without necessarily being preceded by an arrest. An illustration would be the "stop-and-search"
without a warrant at military or police checkpoints, the constitutionality of which has already been
upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a
routine inspection and answering a few questions. If vehicles are stopped and extensively searched
it is because of some probable cause which justifies a reasonable belief of those manning the
checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been
instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not
intended to do away with the general rule that no person shall be subjected to search of his person,
personal effects and belongings, or his residence except by virtue of a search warrant or on the
occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-
search" at a military or police checkpoint.

2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED,
AS IN THIS CASE. — Their submissive stance after the discovery of the bag of marijuana, as well
as the absence of any protest on their part when arrested, not only casts serious doubt on their
professed innocence but also confirms their acquiescence to the search. Clearly then, there was
waiver of the right against unreasonable search and seizure. In one case We held — ". . . When one
voluntarily submits to a search or consents to have it made of his person or premises, he is
precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361).
The right to be secure from unreasonable search and seizure may, like every right, be waived and
such waiver may be made either expressly or impliedly."

3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF

DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART.
II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF
WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL
PROCEDURE, AS AMENDED. — The arrest of the three (3) accused was lawful because it was
made upon the discovery of the prohibited drug in their possession. There was no need for a
warrant; the arrest was made while a crime was committed. This is one of the situations envisioned
by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a
warrantless arrest may be made. The accused were caught in the act of dispatching in transit or
transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended.

4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO

CREDIBILITY OF WITNESSES; CASE AT BAR. — Factual conclusions by the trial court relative to
the credibility of witnesses are entitled to great respect and are generally sustained by the appellate
court unless some material facts have been overlooked or misconstrued as to affect the result.
There is none in this case on appeal.

5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF

EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE
THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. — We turn to the
legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention
that it was seized without a valid search warrant. Since the search was conducted prior to the arrest,
Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the
proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that
the same was obtained in a warrantless search. Consequently, he is deemed to have waived his
objection on the legality of the search and the admissibility of the evidence obtained in the course
thereof. In view of such waiver, the court is bound to admit evidence.

6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A

PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. — Proof of
ownership is immaterial where the accused is charged with the unlawful transportation of marijuana.
Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited
drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug.

CRUZ, J., dissenting:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY

CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF
RIGHTS. — I do not agree that in the interest of peace and order, any or every vehicle may be
stopped at any time by the authorities and searched without warrant on the chance that it may be
carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights.
In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The
search is made as a matter of course, either of all vehicles or at random. There is no showing that a
crime is about to be committed, is actually being committed, or has just been committed and the
searching officer has personal knowledge that the person being searched or arrested is the
culprit . . . I realize that this view would result in the inadmissibility of the seized marijuana as
evidence against the petitioner and in his inevitable acquittal. But as I have always maintained, we
cannot retroactively validate an illegal search on the justification that, after all, the articles seized are
illegal.

DECISION

BELLOSILLO, J p:

The admissibility of the evidence seized from the accused at a checkpoint after being stopped for
routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of
Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt
of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act
of 1972."
On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant
Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection
regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime
P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went
near the jeep and asked the occupants if there were firearms inside. They answered in the negative.
Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black
leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked
what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused,
Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety.
Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as
"marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless
in their seats and appeared petrified with fear. They were brought to the police station that same
night for further investigation. 2

After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp
otherwise known as marijuana. 3

Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly
charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended.

After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of
P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received
lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not.

Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his
conviction; hence, We deal only with him in this appeal.

Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan
claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted
the offer and requested Bocalan to make a detour to Salitran, Dasmariñas, Cavite, where he was to
pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until
their apprehension at the checkpoint. 6

Bocalan further contends that the trial court erred in admitting the bag as evidence against him since
it was obtained through a warrantless search. 7

The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of
Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he
knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2
November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20)
kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the
marijuana is hardly credible.

On the other hand, Exala declared that it was he who did not know the contents of the bag as it was
already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who
owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to
P10,000.00, to take the blame alone, but he refused. 10

Proof of ownership is immaterial where the accused is charged with the unlawful transportation of
marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of
the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited
drug. The law simply provides thus —
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The
penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand
pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any of such transactions. If the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed."

Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the
unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly
the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan
and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited
drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in
fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one
after the other to accompany him to the place where the bag of marijuana was taken and to help him
bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and
Exala, Bocalan is correctly punished for his direct involvement in the crime.

Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great
respect and are generally sustained by the appellate court unless some material facts have been
overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal.

We turn to the legal question on the admissibility of the marijuana as evidence in the light of
Bocalan's contention that it was seized without a valid search warrant. Since the search was
conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest.

This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of
the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is
deemed to have waived his objection on the legality of the search and the admissibility of the
evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the
evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention
deserves scant consideration.

There are indeed instances where search and seizure can be effected without necessarily being
preceded by an arrest. 16 An illustration would be the "stop-and-search" without a warrant at military
or police checkpoints, the constitutionality of which has already been upheld by this Court. 17
Vehicles are generally allowed to pass through these checkpoints after a routine inspection and
answering a few questions. If vehicles are stopped and extensively searched it is because of some
probable cause which justifies a reasonable belief of those manning the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments in the
commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do
away with the general rule that no person shall be subjected to search of his person, personal
effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a
lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at
a military or police checkpoint.

The checkpoint in the instant case was established in line with "Operational Bakal" the main object of
which was to search for unlicensed firearms and other prohibited items in the possession of
unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through
the checkpoint, it was flagged down and the occupants were asked routine questions. In the course
thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the
contents of the bag were. None of the accused answered. At that moment, the demeanor of the
accused changed; they became suspiciously quiet and nervous as if they were concealing
something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered.
Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear
normal, provided the probable cause justifying a more extensive search that led to the opening of the
bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or
objection to the search. The accused remained silent even after their arrest.

Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any
protest on their part when arrested, not only casts serious doubts on their professed innocence 21
but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right
against unreasonable search and seizure. 23 In one case 24 We held —

". . . When one voluntarily submits to a search or consents to have it made of his person or
premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed.,
Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be
waived and such waiver may be made either expressly or impliedly" (emphasis supplied).

The arrest of the three (3) accused was lawful because it was made upon the discovery of the
prohibited drug in their possession. There was no need for a warrant; the arrest was made while a
crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the
1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The
accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec.
4, Art. II, of R.A. 6425, as amended.

The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was
explained in their separate testimonies and, in any event, has been resolved by the trial court as a
factual issue. We find no reason to reverse its findings.

Anent the argument that the three (3) accused should not have been assigned different levels of
liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would
have been meted out the same penalty imposed by the trial court.

WHEREFORE, there being no reversible error in the decision appealed from finding accused-
appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same
is AFFIRMED, with costs against him.

SO ORDERED.
 EN BANC

G.R. No. L-5803 November 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO CAPINO, defendants-appellants.

Jose P. Laurel, Cipriano Primicias, Alejo Mabanag, Manuel Concordia, P.M. Stuart Del Rosario,
Tomas R. Umali, Eufemio E. De Mesa and Edmundo T. Zepeda for appellants.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for appellee.

MONTEMAYOR, J.:

Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing directly to this Tribunal from a
decision of the Court of First Instance of Quezon province finding them guilty of the complex crime of
rebellion with multiple murder, frustrated murder, arson and robbery, and sentencing each of them to
"life imprisonment, other accessories of the law, to indemnify jointly and severally Marcial Punsalan
in the amount of P24,023; Valentin Robles in the amount of P10,000; Yao Cabon in the amount of
P700; Claro Robles in the amount of P12,800; Pocho Guan in the amount of P600; the heirs of
Domingo Pisigan in the amount of P6,000; the heirs of Locadio Untalan in the amount of P6,000;
Patrolman Pedro Lacorte in the amount of P500; Lazaro Ortega in the amount of P300; Hilarion
Aselo in the amount of P300; Calixto Rivano in the amount P50; Melecio Garcia in the amount of
P60; and Juanito Lector in the amount of P90, each to pay one fifteenth of the costs, without
subsidiary imprisonment in case of insolvency due to the nature of the principal penalty that is
imposed upon them."

The complex crime of which appellants were found guilty was said to have been committed during
the raid staged in the town of Tiaong, Quezon, between 8:00 and 9:00 in the evening of November
14, 1951, by armed men. It is not denied that such a raid took place resulting in the burning down
and complete destruction of the house of Mayor Marcial Punzalan including its content valued at
P24,023; the house of Valentin Robles valued at P10,000, and the house of one Mortega, the death
of Patrolman Domingo Pisigan and civilians Vicente Soriano and Leocadio Untalan, and the
wounding of Patrolman Pedro Lacorte and five civilians; that during and after the burning of the
houses, some of the raiders engaged in looting, robbing one house and two Chinese stories; and
that the raiders were finally dispersed and driven from the town by the Philippine Army soldiers
stationed in the town led by Captain Alzate.

To understand the reason for and object of the raid we have to go into the political situation in
Tiaong not only shortly before that raid but one year or two years before it. Narciso Umali and
Marcial Punzalan were old time friends and belonged to the same political faction. In the general
elections of 1947 Umali campaigned for Punzalan who later was elected Mayor of Tiaong. In the
elections of 1949 Punzalan in his turn campaigned and worked for Narciso Umali resulting in the
latter's election as Congressman. However, these friendly relations between the two did not endure.
In the words of Punzalan, Narciso Umali who as Congressman regarded himself as the political
head and leader in that region including Tiaong, became jealous because of his (Punzalan's) fast
growing popularity among the people of Tiaong who looked to him instead of Umali for political
guidance, leadership, and favors. In time the strain in their relations became such that they ceased
to have any dealings with each other and they even filed mutual accusations. According to
Punzalan, in May 1950, Umali induced about twenty-six special policemen of his (Punzalan's) to flee
to the mountains with their arms and join the Huks, this is in order to discredit Punzalan's
administration; that he was later able to contact two of his twenty-six policemen and tried to
persuade them to return to the town and to the service, but they told him that they and their
companions would not surrender except and with through the intervention of Congressman Umali,
and so Punzalan had to seek Umali's intervention which resulted in the surrender of the 26 men with
their firearms; that thereafter Umali wanted to have their firearms, claiming that they all belonged to
him from his guerrilla days when he was a colonel, and that after liberation he had merely loaned
them to the municipal authorities of Tiaong to help keep peace and order; and that the refusal of
Punzalan to grant Umali's request further strained their relations, and thereafter Umali would not
speak to him even when they happened to meet at parties.

On September 19, 1951, the Chief of Police of Punzalan disarmed four of Umali's men, including his
bodyguard Isidro Capino who were then charged with illegal possession of firearms. Umali
interceded for his men and Col. Gelveson, Provincial Commander, sent a telegram stating that the
firearms taken away from the men were licensed. As a result the complaint was dismissed. This
incident was naturally resented by Umali and spurred him to have a showdown with Punzalan.

Then the elections of 1951 (November 13) approached and Punzalan ran for reelection. To oppose
him, and to clip his political wings and definitely blast his ambition for continued power and influence
in Tiaong, Umali picked Epifanio Pasumbal, his trusted leader.

The pre-election campaign and fight waged by both factions — Punzalan and Pasumbal, was
intense and bitter, even ruthless. The election was to be a test of political strength and would
determine who was who in Tiaong, — Umali or Punzalan. Umali spoke at political meetings, extolling
the virtues of Pasumbal and the benefits and advantages that would accrue to the town if he was
elected, at the same time bitterly attacking Punzalan, accusing him of dishonesty, corruption in
office, abuse of power, etc. At one of those meetings he told the audience not to vote for Punzalan
because he would not be elected and that even if he won the election, he would not sit for blood will
flow, and that he (Umali) had already prepared a golden coffin for him (Punzalan). After denying the
charges, in retort, Punzalan would say that Umali as a Congressman was useless, and that he did
not even attend the sessions and that his chair in Congress had gathered dust, even cobwebs.

To help in the Umali-Pasumbal campaign, Amado Mendoza who later was to play the role of star
witness for the prosecution, was drafted. He was a compadre of Pasumbal and had some
experience in political campaigns, and although he was not exactly a model citizen, being
sometimes given to drunkenness, still, he had the gift of speech and persuasion. In various political
meetings he delivered speeches for Pasumbal. He was ever at the back and call of Umali and
Pasumbal, and naturally he frequented the latter's houses or headquarters. The result of the
elections plainly showed that Punzalan was the political master and leader in Tiaong. He beat
Pasumbal by an overwhelming majority of 2,221 votes. Naturally, Umali and Pasumbal were keenly
disappointed, and according to the evidence, adopted measures calculated to frustrate Punzalan's
victory, even as prophesied by Umali himself in one of his pre-election speeches about blood flowing
and gold coffin.

Going back to the raid staged in Tiaong on November 14, 1951, it is well to make a short narration of
the happenings shortly before it, established by the evidence, so as to ascertain and be informed of
the reason or purpose of said raid, the persons, behind it, and those who took part in it. According to
the testimony of Amado Mendoza, in the morning of November 12th, that is, on the eve of the
election, at the house of Pasumbal's father, then being used as his electoral headquarters, he heard
Umali instruct Pasumbal to contact the Huks through Commander Abeng so that Punzalan will be
killed, Pasumbal complying with the order of his Chief (Umali) went to the mountains which were
quite near the town and held a conference with Commander Abeng. It would seem that Umali and
Pasumbal had a feeling that Punzalan was going to win in the elections the next day, and that his
death was the surest way to eliminate him from the electoral fight.

The conference between Pasumbal and Commander Abeng on November 12th was witnessed and
testified to by Nazario Anonuevo, a Huk who was under Commander Abeng, and who later took an
active part in the raid. In the evening of the same day, Mendoza heard Pasumbal report to Umali
about his conference with Commander Abeng, saying that the latter was agreeable to the
proposition and had even outlined the manner of attack, that the Huks would enter the town (Tiaong)
under Commander Lucio and Aladin, the latter to lead the sector towards the East; but that
Commander Abeng had suggested that the raid be postponed because Pasumbal may yet win the
election the following day, thereby rendering unnecessary the raid and the killing of Punzalan.

Continuing with the testimony of Amado Mendoza, he told the court that as per instructions of Umali
he went to the house of the latter, in the evening of November 14th, the day following the election,
with the result of the election already known, namely, the decisive victory of Punzalan over
Pasumbal. He was told by Umali to come with him, and Pasumbal and the three boarded a jeep with
Pasumbal at the wheel. They drove toward the Tiaong Elementary School and once there he
(Mendoza) was left at the school premises with instructions by Umali to wait for Commander Abeng
and the Huks and point to them the house of Punzalan. After waiting for sometime, Abeng and his
troops numbering about fifty, armed with garands and carbines, arrived and after explaining his
identity and his mission to Abeng, he had led the dissidents or part of the contingent in the direction
of Punzalan's house and on arriving in front of the bodega of Robles, he pointed out Punzalan's
house and then walked toward his home, leaving the Huks who proceeded to lie flat in a canal.
Before reaching his house, he already heard shots, so, he evacuated his family to their dugout in his
yard. While doing so he and his wife Catalina Tinapunan saw armed men in the lanzones grove just
across the street from their house, belonging to the father of Umali, and among those men they saw
Congressman Umali holding a revolver, in the company of Huk Commander Torio and about 20
armed men. Afterwards they saw Umali and his companions leave in the direction of Taguan, by way
of the railroad tracks.

It would appear from the evidence that the raid was well-planned. As a diversionary measure, part of
the attacking force was deployed toward the camp or station of the Army (part of 8th B.C.T.) in the
suburbs and the camp was fired upon, not exactly to destroy or drive out that Army unit but to keep it
from going to the rescue and aid of the main objective of the raid. The rest of the raiding party went
toward Punzalan's house and attacked it with automatic weapons, hand grenades, and even with
bottles filled with gasoline (popularly known as Molotov's cocktail). It was evident that the purpose of
the attack on Punzalan's house was to kill him. Fortunately, however, and apparently unknown to the
attackers and those who designed the raid, at six o'clock that morning of November 14th Punzalan
and his Chief of Police had left Tiaong to go to Lucena, the capital, to report the results of the
election to the Governor.

The attack on the house of Punzalan was witnessed and described by several persons, including
policemen who happened to be near the house. Policeman Tomas Maguare who was in front of the
house saw Epifanio Pasumbal, Isidro Umali (brother of Congressman Umali) and Moises Escueta
enter the gate of Punzalan's house and take part in the firing. Policeman Pedro Lacorte who was
stationed as guard at the gate of Mayor Punzalan's house recognized defendant Isidro Capino as
one of those firing at the house. Lacorte said that he was guarding the house of Punzalan when he
suddenly heard shots coming from the sides of the house and going over to the place to investigate,
he saw armed men in fatigue and shouting "burn the house of Mayor Punzalan"; that he was hit on
the left check and later Isidro Capino threw at him a hand grenade and he was hit in the right
forearm and in the right eye and became permanently blind in said eye. Mateo Galit, laundryman
who was sitting inside a jeep parked in front of the house of Punzalan recognized defendant
Pasumbal as one of the attackers who, once in the yard said ina loud voice as though addressing
somebody in the house "Pare, come down." Mrs. Punzalan who was then inside the house related to
the court that at about eight in the evening while she was resting she heard shots and rapid firing. As
a precaution she took her children to the bathroom. Then she noticed that her house was being fired
at because the glass window panes were being shattered and she heard the explosion of a hand
grenade inside the house, followed by flares in the sala and burning of blankets and mosquito nets in
the bedrooms and she noticed the smell of smoke of gasoline. Realizing the great danger, she and
the children ran out of the house and went to hide in the house of a neighbor.

Nazario Añonuevo declared in court that he was a farmer and was picked up and seized by Huk
Commander Tommy sometime in August 1951, and was taken to Mt. Banahaw in Laguna and
mustered in the ranks of the Huks; that just before the elections of November 13, 1951, he saw
Pasumbal come to the mountains near Tiaong and talk to Commander Abeng; that on November
14th by order of Commander Abeng he with other Huks left Mt. Banahaw for Tiaong; that when they
crossed the Osiw River already near Tiaong, they were met by Pasumbal and Capino; that when
they were at the outskirts of the town, he and the party were told by Commander Tommy to attack
the 8th BCT camp in Tiaong to prevent the sending of army help to the town proper; that he took part
in firing on the camp which returned the fire in the course of which he was wounded; and that
because of his wound he could not escape with his companions to the mountains when the Army
soldiers dispersed and drove them out of the town and so he was finally captured by said soldiers.

As to defendants Pasumbal and Capino, their participation in and responsibility for the raid was duly
established not only by the going of Pasumbal on November 12th to the mountains following
instructions of Umali, and conferring with Commander Abeng asking him to raid Tiaong and kill
Punzalan, but also by the fact that Pasumbal and Capino in the afternoon or evening of November
14th met the Huks at the Osiw River as the dissidents were on their way to Tiaong and later
Pasumbal and Capino were seen in the yard of Punzalan firing at the house with automatic weapons
and hand grenades.

What about Umali? His criminal responsibility was also established, tho indirectly. We have the
testimony of Amado Mendoza who heard him instructing Pasumbal to contact Commander Abeng
and ask him to raid Tiaong and kill Punzalan. The rest of the evidence is more or less circumstantial,
but nonetheless strong and convincing. No one saw him take part in the firing and attack on the
house of Punzalan; nor was he seen near or around said house. Because of his important position
as Congressman, perchance he did not wish to figure too prominently in the actual raid. Besides, he
would seem to have already given out all the instructions necessary and he could well stay in the
background. However, during the raid, not very far from Punzalan's house he was seen in the
lanzonesan of his father, holding a revolver and in the company of about 20 armed men with Huk
Commander Torio, evidently observing and waiting for developments. Then he and his companions
left in the direction of Taguan.

Umali and Pasumbal, however, claim that during the raid, they were in the home of Pasumbal in
Taguan, about seven kilometers away from Tiaong where a consolation party was being held. There
is ample evidence however to the effect that they arrived in Pasumbal's home only around midnight.
An Army soldier named Cabalona who happened to be in Pasumbal's home arriving there earlier in
the evening and who was invited to take some refreshments said that he did not see the two men
until they arrived about midnight when the Army reinforcements from Lucena passed by on their way
to Tiaong. Thus, we have this chain of circumstances that does not speak in favor of Umali, or
Pasumbal for that matter. But this is not all. There is the rather strange and unexplained, at least not
satisfactorily, behaviour of Umali and Pasumbal that evening of November 14th. Assuming for a
moment as they claim, that the two were not in Tiaong at the commencement of the raid between
8:00 and 9:00 p.m., and during the whole time the raid lasted, and that they were all that time in the
home of Pasumbal in Taguan, still, according to their own evidence, they were informed by persons
coming or fleeing from Tiaong that there was a raid going on there, and that some houses were
burning. As a matter of fact, considering the promixity of Taguan to Tiaong, a distance of about
seven kilometers and the stillness and darkness of the night, the fire and the glow produced by the
burning of three houses and the noise produced by the firing of automatic weapons and the
explosion of the hand grenades and bottles of gasoline, could and must have been seen and heard
from Taguan. The natural and logical reaction on the part of Umali and Pasumbal would have been
to rush to Tiaong, see what had really happened and then render help and give succor to the
stricken residents, including their own relatives. It will be remembered that the houses of the fathers
of Umali and Pasumbal were in Tiaong and their parents and relatives were residing there. And yet,
instead of following a natural impulse and urge to go to Tiaong, they fled in the opposite direction
towards Candelaria. And Umali instead of taking the road, purposely avoided the same and
preferred to hike through coconut groves so that upon arriving in Candelaria, he was wet, and
spattered and very tired. Had they wanted to render any help to Tiaong they could have asked the
police authorities of Candelaria to send a rescue party to that town. Or better still, when the army
reinforcements from Lucena sent at the instance of Punzalan, who at about eight or nine that
evening was returning to Tiaong from Lucena, found at the barrio or sitio of Lusakan near Tiaong
that there was fighting in the town, he immediately returned to Lucena to get army reinforcements to
relieve his town, was passing by Taguan, where they were, Umali and Pasumbal could have joined
said reinforcements and gone to Tiaong. Instead the two continued on their way to the capital
(Lucena) where before dawn, they went and contacted Provincial Fiscal Mayo, a first cousin of
Umali, and Assistant Fiscal Reyes and later had these two officials accompany them to the Army
camp to see Col. Gelveson, not for the purpose of asking for the sending of aid or reinforcement to
Tiaong but presumably to show to the prosecution officials, specially the Army Commander that they
(Umali and Pasumbal) had nothing to do whatsoever with the raid. Umali said he was trying to avoid
and keep clear of Tiaong because he might be suspected of having had some connection with the
raid and might be the object of reprisal. As a matter of fact, according to Umali himself, while still in
Taguan that evening and before he went to Candelaria, somebody had informed him that Col.
Legaspi of the Army was looking for him. Instead of seeking Col. Legaspi and find out what was
wanted of him, he left in the opposite direction and fled to Candelaria and later to Lucena, and the
next day he took the train for Manila. This strange act and behaviour of the two men, particularly
Umali, all contrary to impulse and natural reaction, and what other people would ordinarily have
done under the circumstances, prompted the trial court in its decision to repeat the old saying "The
guilty man flees even if no one pursues, but the innocent stands bold as a lion." We might just as
well reproduce that portion of the decision of the trial court, to wit:

. . . Considering the fact that Taguan is very near Tiaong so that even taking it for granted as
true, for the sake of argument, that the said accused were really at the party of Pasumbal on
the night in question, that would not prevent them from being in Tiaong between 8 and 9.
Besides, why was it that night the hasag lamp was replaced with candles when the
reinforcements passed through Taguan about midnight of November 14, 1951. Why did
Congressman Umali and company instead of going to Tiaong which was the scene of the
attack hurried towards Candelaria, after the reinforcement has passed and went to the house
of Felix Ona walking through a muddy path under the coconut groves? Why was Umali afraid
to pass through the provincial road and preferred a muddy road instead? Was he trying to
conceal himself? Why did Pasumbal and company also go to the house of Ona? Why did
they go to the house of Felix Ona instead of going to the house of Manalo who could have
given them better protection? And again why did Congressman Umali and the other co-
accused repaired and sought the company of Fiscal Reyes in going at such an early hour to
the Army authorities, did they fear any reprisal? From whom? Why did Umali go to Manila
from Lucena on November 16, 1951? "The guilty man flees even if no one pursues, but the
innocent stands bold as a lion."

At first blush it would appear rather unbelievable that Umali and Pasumbal, particularly the former
should seek the aids of the Huks in order to put down and eliminate their political enemy Punzalan. It
would seem rather strange and anomalous that a member of Congress should have friendly
relations with this dissidents whom the Government had been fighting all these years. But if we study
the evidence, it will be found that the reason and the explanation are there. As already stated, during
the Japanese occupation, to further the resistance movement, guerillas were organized in different
parts of the Philippines. One of these was the guerilla unit known as President Quezon's Own
Guerillas (PQOG) operating in the provinces of Tayabas (now Quezon) and Laguna. Umali,
Pasumbal, Commander Abeng and even Punzalan himself were officers in this guerilla unit, Umali
attaining the rank of colonel, and Pasumbal and Punzalan that of Lieutenant-colonel, Pasumbal then
being known as "Panzer". After Liberation, Abeng joined the dissidents, and became a Huk
Commander. It was not unnatural that Umali and Pasumbal should continue their friendship and
association with Commander Abeng and seek his aid when convenient and necessary. Umali
admitted that he knew Huk Commander Kasilag. Graciano Ramos, one of the witnesses of the
prosecution told the court that way back in May 1950, in a barrio of San Pablo City he saw Umali
confer with Commander Kasilag, which Commander after the conference told his soldiers including
Ramos that Umali wanted the Huks to raid Tiaong, burn the presidencia and kidnap Punzalan. Of
course, the last part of the testimony may be regarded as hearsay, but the fact is that Umali
conferred with a Huk commander as early as 1950. Then we have the fact that on November 18 of
the same year Punzalan wrote to President Quirino denouncing the congressman Umali for
fraternizing with the Huks and conducting a campaign among them in preparation for the elections
the following year. And we may also consider the fact that the town of Tiaong stands at the foothills
of Mt. Banahaw where the dissidents under Commander Abeng, Tommy, Lucio, Aladin, and others
had their hideout, so that it was not difficult for residents of Tiaong like Umali and Pasumbal to
communicate and even associate with dissidents in that region.

After carefully considering all the evidence in the case, we are constrained to agree with the trial
court that the three appellants are guilty. Besides, the determination of this case, in great measure,
hinges on the credibility of witnesses. The learned trial court which had the opportunity of observing
the demeanor of witnesses on the stand and gauging their sincerity and evaluating their testimony,
decided the Government witnesses, including Amado Mendoza, to be more credible and reliable.
And we find nothing in the record to warrant correction or reversal of the stand and finding of the trial
court on the matter. We have not overlooked the rather belated retraction of Amado Mendoza made
on October 31, 1952, about a year and 9 months after he testified in court. Considering the
circumstances surrounding the making of this affidavit or retraction, the late date at which it was
made, the reasons given by him for making it and the fact that when he testified in court under the
observation and scrutiny of the trial court bearing in mind that he was the star witness for the
prosecution and his testimony naturally extremely important, and the trial court after the opportunity
given to it of observing his demeanor while on the witness stand had regarded him as a witness,
sincere, and his testimony truthful, and considering further the case with which affidavits of retraction
of this nature are obtained, we confess that we are not impressed with such retraction of Mendoza.

The last point to be determined is the nature of the offense of offenses committed. Appellants were
charged with and convicted of the complex crime of rebellion with multiple murder, frustrated murder,
arson and robbery. Is there such a complex crime of rebellion with multiple murder, etc? While the
Solicitor General in his brief claims that appellants are guilty of said complex crime and in support of
his stand "asks for leave to incorporate by reference" his previous arguments in opposing Umali's
petition for bail, counsel for appellants considered it unnecessary to discuss the existence or non-
existence of such complex crime, saying that the nature of the crime committed "is of no moment to
herein appellants because they had absolutely no part in it whatsoever". For that present, and with
respect to this particular case, we deem it unnecessary to decide this important and controversial
question, its consideration and determination to another case or occasion more opportune, when it is
more directly and squarely raised and both parties given an opportunity to discuss and argue the
question more adequately and exhaustively. Considering that, assuming for the moment that there is
no such complex crime of rebellion with murder, etc., and that consequently appellants could not
have been legally charged with, much less convicted of said complex crime, and the information
should therefore, be regarded as having charged more than one offense, contrary to Rule 106,
section 12 and Rule 113, section 2 (e), of the Rules of Court, but that appellants having interposed
no objection thereto, they were properly tried for and lawfully convicted if guilty of the several,
separate crimes charged therein, we have decided and we rule that the appellants may properly be
convicted of said several and separate crimes, as hereinafter specified. We feel particularly
supported and justified in this stand that we take, by the result of the case, namely, that the prison
sentence we impose does not exceed, except perhaps in actual duration, that meted out by the
Court below, which is life imprisonment.

We are convinced that the principal and main, tho not necessarily the most serious, crime committed
here was not rebellion but rather that of sedition. The purpose of the raid and the act of the raiders in
rising publicly and taking up arms was not exactly against the Government and for the purpose of
doing the things defined in Article 134 of the Revised Penal code under rebellion. The raiders did not
even attack the Presidencia, the seat of local Government. Rather, the object was to attain by
means of force, intimidation, etc. one object, to wit, to inflict an act of hate or revenge upon the
person or property of a public official, namely, Punzalan was then Mayor of Tiaong. Under Article
139 of the same Code this was sufficient to constitute sedition. As regards the crime of robbery with
which appellants were charged and of which they were convicted, we are also of the opinion that it
was not one of the purposes of the raid, which was mainly to kidnap or kill Punzalan and destroy his
house. The robberies were actually committed by only some of the raiders, presumably dissidents,
as an afterthought, because of the opportunity offered by the confusion and disorder resulting from
the shooting and the burning of the three houses, the articles being intended presumably to
replenish the supplies of the dissidents in the mountains. For these robberies, only those who
actually took part therein are responsible, and not the three appellants herein. With respect to the
crime of multiple frustrated murder, while the assault upon policeman Pedro Lacorte with a hand
grenade causing him injuries resulting in his blindness in one eye, may be regarded as frustrated
murder; the wounding of Ortega, Anselo, Rivano, Garcia and Lector should be considered as mere
physical injuries. The crimes committed are, therefore, those of sedition, multiple murder, arson,
frustrated murder and physical injuries. The murders may not be qualified by evident premeditation
because the premedition was for the killing of Punzalan. The result was the killing of three others
intended by the raiders (People vs. Guillen, 47 Off). The killing may, however, be qualified by
treachery, the raiders using firearms against which the victims were defenseless, with the
aggravating circumstance of abuse of superior strength. The three murders may be punished with
the penalty of death. However, because of lack of the necessary votes, the penalty should be life
imprisonment.

We deem it unnecessary to discuss the other points raised by the appellants in their brief.

In conclusion, we find appellants guilty of sedition, multiple murder, arson, frustrated murder and
physical injuries. For the crime of sedition each of the appellants is sentenced to 5 years of prision
correctional and to pay a fine of P4,000; for each of the three murders, each of the appellants is
sentenced to life imprisonment and to indemnify the heirs of each victim in the sum of P6,000; and
for the arson, for which we impose the maximum penalty provided in Article 321, paragraph 1, of the
Revised Penal Code, for the reason that the raiders in setting fire to the buildings, particularly the
house of Punzalan they knew that it was then occupied by one or more persons, because they even
and actually saw an old lady, the mother of Punzalan, at the window, and in view of the aggravating
circumstances of nighttime, each of the appellants is sentenced to reclusion perpetua and to pay the
indemnities mentioned in the decision of the lower court. It shall be understood, however, the
pursuant to the provisions of Article 70 of the Revised Penal Code the duration of all penalties shall
not exceed 40 years. In view of the heavy penalties already imposed and their long duration, we find
it unnecessary to fix and impose the prison sentences corresponding to frustrated murder and
physical injuries; however, the sums awarded the victims (Lacorte, Ortega, Anselo, Rivano, Garcia
and Lector), by the court below will stand. With these modifications, the decision appealed from is
hereby affirmed, with costs.
 THIRD DIVISION

G.R. No. L-63630 April 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at
San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of
1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the
costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province
of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is
a prohibited drug, did then and there willfully, unlawfully and feloniously have his possession,
control and custody one (1) bag of dried marijuana leaves with an approximate weight of one
(1) kilo and to transport (sic) the same to Olongapo City, without authority of law to do so. (At
p. 6, Rollo)

The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is
narrated by the trial court as follows:

It appears from the evidence presented by the prosecution that in the late evening of March
2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police
Station, together with Barangay Tanod Macario Sacdalan, were conducting surveillance
mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San
Fernando, Pampanga; that the surveillance was aimed not only against persons who may
commit misdemeanors at the said place but also on persons who may be engaging in the
traffic of dangerous drugs based on informations supplied by informers; that it was around
9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G)
who was acting suspiciously and they confronted him; that the person was requested by
Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only
to accede later on when the patrolmen identified themselves; that found inside the bag were
marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or
less; that the person was asked of his name and the reason why he was at the said place
and he gave his name as Medel Tangliben and explained that he was waiting for a ride to
Olongapo City to deliver the marijuana leaves; that the accused was taken to the police
 headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio
Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F).

It appears also from the prosecution's evidence that in the following morning or on March 3,
1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to
be his brother and who has had special training on narcotics, to conduct a field test on a little
portion of the marijuana leaves and to have the remaining portion examined by the PCCL at
Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test
(Exhibit H) on the marijuana leaves and found positive result for marijuana (Exhibit E); that
the remaining bigger quantity of the marijuana leaves were taken to the PCCL at Camp
Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and
when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-
10, Rollo)

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

The accused declared that he got married on October 25, 1981 and his wife begot a child on
June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro
Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and
feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to
Subic at times in connection with his business and whenever he is in Subic, he used to buy
C-rations from one Nena Ballon and dispose the same in Manila; that he never left his
residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to
collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able
to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00
o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00
o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by
9:00 o'clock that evening that it was a Victory Liner Bus that he rode and because he was
tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that upon
alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street
to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to
know later as Pat. Punzalan, approached him and asked him if he has any residence
certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the
money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken
to the municipal building for verification as he may be an NPA member; that at the municipal
building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but
was awakened when he arrived that Pat. Quevedo took him upstairs and told him to take out
everything from his pocket saying that the prisoners inside the jail may get the same from
him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him
that it shall be returned to him but that it was never returned to him; that he was thereafter
placed under detention and somebody told him that he is being charged with possession of
marijuana and if he would like to be bailed out, somebody is willing to help him; and, that
when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away
all his money but he told his wife not to complain anymore as it would be useless. (Rollo, pp.
10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his
appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND

FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL
EVIDENCE. (At p. 48, Rollo)
The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.

However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan
died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto,
the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her
appellant's brief. The latter complied and, in her brief, raised the following assignment of errors:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF

MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A
PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE

OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED
WHEN IT WAS NEVER AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO
PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful
search without a warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant.

Meanwhile, Rule 113, Sec. 5(a) provides:

. . . A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case
therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest
and is consequently valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue,
held that:
 Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a
warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search
being an incident to a lawful arrest is in itself lawful. (Nolasco V. Paño, 147 SCRA 509).
Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.

We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In
that case the PC officers had earlier received a tip from an informer that accused-appellant. was on
board a vessel bound for Iloilo City and was carrying marijuana. Acting on this tip, they waited for
him one evening, approached him as he descended from the gangplank, detained him and
inspected the bag he was carrying. Said bag contained marijuana leaves. The Court held that the
marijuana could not be admitted in evidence since it was seized illegally. The records show,
however, that there were certain facts, not sing in the case before us, which led the Court to declare
the seizure as invalid. As stated therein:

The present case presented no such urgency From the conflicting declarations of the PC
witnesses, it is clear that they had at react two days within which they could have obtained a
warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was identified. The date of its arrival was certain. And from
the information they had received, they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort
was made to comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own authority that
a "search warrant was not necessary."

In contrast, the case before us presented urgency. Although the trial court's decision did not mention
it, the transcript of stenographic notes reveals that there was an informer who pointed to the
accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information,
the police officers had to act quickly. There was not enough time to secure a search warrant. We
cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during
on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to
contain the crimes with which these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from
him was never authenticated and therefore should not have been admitted as evidence. He
capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the PC
Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule,
however, that since Patrolman Quevedo testified that he gave the marijuana package together with a
letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she
received the marijuana together with the letter-request and said letter-request bore the name of the
accused, then the requirements of proper authentication of evidence were sufficiently complied with.
The marijuana package examined by the forensic checklist was satisfactorily identified as the one
seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto
Quevedo which yielded positive results for marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.
In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an already
settled issue. This Court has ruled in several cases that non-presentation of the informer, where his
testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case.
(People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No. 64262, March 16,
1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of
credibility of witnesses and their testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that is peculiarly within the province
of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada,
G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb
the following findings:

The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan
are positive and sufficiently clean to show the commission by the accused of the offense
herein chatted. These prosecution witnesses have no motive to fabricate the facts and to
foist a very serious offense against the accused. The knowledge on what these witnesses
testified to were (sic) acquired by them in the official performance of their duties and then,
(sic) being no showing that they are prejudiced against the accused, their testimonies
deserve full credit.

The testimonies of the afore-mentioned petitioner that what they found in the possession of
the accused were marijuana leaves were corroborated by the examination findings
conducted by Pat. October to Salangad of the PCCL, with station at camp Olivas, San
Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got
all the money from his wallet when he was accosted at the Victory Liner Terminal and was
told just to keep quiet otherwise he will be "salvaged" why will Pat. Punzalan still bring the
accused to the municipal Building for interrogation and/or verification? Would not Pat.
Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on
the testimony to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never
returned the same to him. If the policemen really got any money from the accused and that
the marijuana leaves do not belong to the accused, why will the two policemen still produce
in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the
accused and which contained the marijuana in question if the instant case is a mere
fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in
this case were all based on personal knowledge acquired by the prosecution witnesses in
the regular performance of their official duties and there is nothing in their testimonies to
show that they are bias (sic) or that they have any prejudice against the herein accused.
Between the testimonies of these prosecution witnesses and that of the uncorroborated and
self-serving testimony of the accused, the former should prevail. (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed
himself through compulsory court processes of several witnesses to buttress his defense. Since not
one other witness was presented nor was any justification for the non-appearance given, the
inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive
testimonies given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the
lower court, is an added circumstance tending to establish his guilt.

We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more
or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo
who declared, among other things, that when he confronted the accused that night, the latter
told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover,
considering the quantity of the marijuana leaves found in the possession of the accused and
the place he was arrested which is at San Fernando, Pampanga, a place where the accused
is not residing, it can be said that the intent to transport the marijuana leaves has been
clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon.
Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not
appear in the records that the accused, during custodial investigation, was apprised of his rights to
remain silent and to counsel and to be informed of such rights. In People v. Duero 104 SCRA 379
[1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero
made his alleged oral confession he was informed of his rights to remain silent and to have counsel
and because there is no proof that he knowingly and intelligently waived those rights, his confession
is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986],
where the Court added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts
relative to admissibility of statements taken during in-custody interrogation but likewise
dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now
incumbent upon the prosecution to prove during a trial that prior to questioning, the
confessant was warned of his constitutionally protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding
extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the forensic chemist who
examined the marijuana leaves testified that the marijuana weighed only 600 grams Such amount is
not a considerable quantity as to conclusively confer upon the accused an intent to transport the
marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was
arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with
an extremely severe penalty must be based on evidence which is clearer and more convincing than
the inferences in this case.

What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana
leaves but his actual session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act
No. 6425 (Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED.
The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one
(1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.
SO ORDERED.

EN BANC

G.R. No. 82870 December 14, 1989

DR. NEMESIO E. PRUDENTE, petitioner,

vs.
THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila, Branch 33 and PEOPLE
OF THE PHILIPPINES, respondents.

Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Capocyan, Ernesto P. Fernandez, Romulo B.
Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda Virgilio L. Valle and Luciano D. Valencia for
petitioner.

PADILLA, J.:

This is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March
1988 which denied the petitioner's motion to quash Search Warrant No. 87-14, as well as his order
dated 20 April 1988 denying petitioner's motion for reconsideration of the earlier order.

It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special
Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court (RTC)
of Manila, Branch 33, presided over by respondent Judge Abelardo Dayrit, now Associate Justice of
the Court of Appeals. an application 1 for the issuance of a search warrant, docketed therein as
SEARCH WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms,
etc.) entitled "People of the Philippines, Plaintiff, versus Nemesis E. Prudente, Defendant." In his
application for search warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows:

1. That he has been informed and has good and sufficient reasons to believe that
NEMESIO PRUDENTE who may be found at the Polytechnic University of the
Philippines, Anonas St. Sta. Mesa, Sampaloc, Manila, has in his control or
possession firearms, explosives handgrenades and ammunition which are illegally
possessed or intended to be used as the means of committing an offense which the
said NEMESIO PRUDENTE is keeping and concealing at the following premises of
the Polytechnic University of the Philippines, to wit:

a. Offices of the Department of Military Science and Tactics at the

ground floor and other rooms at the ground floor;

b. Office of the President, Dr. Nemesio Prudente at PUP, Second

Floor and other rooms at the second floor;

2. That the undersigned has verified the report and found it to be a fact, and
therefore, believes that a Search Warrant should be issued to enable the
undersigned or any agent of the law to take possession and bring to this Honorable
Court the following described properties:
 a. M 16 Armalites with ammunitions;

b. .38 and .45 Caliber handguns and pistols;

c. explosives and handgrenades; and,

d. assorted weapons with ammunitions.

In support of the application for issuance of search warrant, P/Lt. Florenio C. Angeles, OIC of the
Intelligence Section of (ISAD) executed a "Deposition of Witness" dated 31 October 1987,
subscribed and sworn to before respondent Judge. In his deposition, P/Lt. Florenio Angeles
declared, inter alia, as follows:

Q: Do you know P/Major Alladin Dimagmaliw, the applicant for a

Search Warrant?

A: Yes, sir, he is the Chief, Intelligence and Special Action Division,

Western Police District.

Q: Do you know the premises of Polytechnic University of the

Philippines at Anonas St., Sta. Mesa, Sampaloc, Manila

A: Yes, sir, the said place has been the subject of our surveillance
and observation during the past few days.

Q: Do you have personal knowledge that in the said premises is kept

the following properties subject of the offense of violation of PD No.
1866 or intended to be used as a means of committing an offense:

a. M 16 Armalites with ammunitions;

b. .38 and 45 Caliber handguns and pistols;

c. explosives and handgrenades; and d. Assorted weapons with ammunitions?

A: Yes sir.

Q: Do you know who is or who are the person or persons who has or
have control of the above-described premises?

A: Yes sir, it is Dr. Nemesio Prudente, President of the Polytechnic

University of the Philippines.

Q: How do you know that said property is subject of the offense of

violation of Pres. Decree No. 1866 or intended to be used as the
means of committing an offense?

A: Sir, as a result of our continuous surveillance conducted for

several days, we gathered information from verified sources that the
holder of said firearms and explosives as well as ammunitions aren't
 licensed to possess said firearms and ammunition. Further, the
premises is a school and the holders of these firearms are not
students who were not supposed to possess firearms, explosives and
ammunition.

On the same day, 31 October 1987, respondent Judge issued Search Warrant No. 87-14, 3 the
pertinent portions of which read as follows:

It appearing to the satisfaction of the undersigned, after examining under oath

applicant ALLADIN M. DIMAGMALIW and his witness FLORENIO C. ANGELES that
there are good and sufficient reasons to believe (probable cause) that NEMESIO
PRUDENTE has in his control in the premises of Polytechnic University of the
Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are subject
of the above offense or intended to be used as the means of committing the said
offense.

You are hereby commanded to make an immediate search at any time in the day or
night of the premises of Polytechnic University of the Philippines, more particularly
(a) offices of the Department of Military Science and Tactics at the ground floor and
other rooms at the ground floor; (b) office of the President, Dr. Nemesio Prudente at
PUP, Second Floor and other rooms at the second floor, and forthwith seize and take
possession of the following personal properties, to wit:

a. M 16 Armalites with ammunition;

b. .38 and .45 Caliber handguns and pistols;

c. explosives and hand grenades; and

d. assorted weapons with ammunitions.

and bring the above described properties to the undersigned to be dealt with as the
law directs.

On 1 November 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200
WPD operatives led by P/Col. Edgar Dula Torre, Deputy Superintendent, WPD, and P/Major Romeo
Maganto, Precinct 8 Commander.

In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of the searching
team, alleged that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office
a bulging brown envelope with three (3) live fragmentation hand grenades separately wrapped with
old newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1) pc.—M33 Fragmentation hand
grenade (live); (b) one (11) pc.—M26 Fragmentation hand grenade (live); and (c) one (1) pc.—
PRB—423 Fragmentation hand grenade (live).

On 6 November 1987, petitioner moved to quash the search warrant. He claimed that (1) the
complainant's lone witness, Lt. Florenio C. Angeles, had no personal knowledge of the facts which
formed the basis for the issuance of the search warrant; (2) the examination of the said witness was
not in the form of searching questions and answers; (3) the search warrant was a general warrant,
for the reason that it did not particularly describe the place to be searched and that it failed to charge
one specific offense; and (4) the search warrant was issued in violation of Circular No. 19 of the
Supreme Court in that the complainant failed to allege under oath that the issuance of the search
warrant on a Saturday was urgent. 5

The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and Legal Affairs Division,
WPD, opposed the motion. 6 After petitioner had filed his reply 7 to the opposition, he filed a
supplemental motion to quash. 8

Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the petitioner's motion
and supplemental motion to quash. Petitioner's motion for reconsideration 10 was likewise denied in
the order 11 dated 20 April 1988.

Hence, the present recourse, petitioner alleging that respondent Judge has decided a question of
substance in a manner not in accord with law or applicable decisions of the Supreme Court, or that
the respondent Judge gravely abused his discretion tantamount to excess of jurisdiction, in issuing
the disputed orders.

For a valid search warrant to issue, there must be probable cause, which is 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.12 The probable cause must be in connection with one specific offense 13 and the
judge must, before issuing the warrant, personally examine in the form of searching questions and
answers, in writing and under oath, the complainant and any witness he may produce, on facts
personally known to them and attach to the record their sworn statements together with any
affidavits submitted. 14

The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances
which would lead a reasonably discreet arid prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are in the place sought to be
searched." 15 This probable cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere hearsay. 16

Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it was issued on the
basis of facts and circumstances which were not within the personal knowledge of the applicant and
his witness but based on hearsay evidence. In his application for search warrant, P/Major Alladin
Dimagmaliw stated that "he has been informed" that Nemesio Prudente "has in his control and
possession" the firearms and explosives described therein, and that he "has verified the report and
found it to be a fact." On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles
declared that, as a result of their continuous surveillance for several days, they "gathered
informations from verified sources" that the holders of the said fire arms and explosives are not
licensed to possess them. In other words, the applicant and his witness had no personal
knowledge of the facts and circumstances which became the basis for issuing the questioned search
warrant, but acquired knowledge thereof only through information from other sources or persons.

While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated
that he verified the information he had earlier received that petitioner had in his possession and
custody the t there is nothing in the record to show or indicate how and when said applicant verified
the earlier information acquired by him as to justify his conclusion that he found such information to
be a fact. He might have clarified this point if there had been searching questions and answers, but
there were none. In fact, the records yield no questions and answers, whether searching or not, vis-
a-vis the said applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major
Dimagmaliw's application, and the said deposition is based on hearsay. For, it avers that they
(presumably, the police authorities) had conducted continuous surveillance for several days of the
suspected premises and, as a result thereof, they "gathered information from verified sources" that
the holders of the subject firearms and explosives are not licensed to possess them.

In Alvarez vs. Court of First Instance, 17 this Court laid the following test in determining whether the
allegations in an application for search warrant or in a supporting deposition, are based on personal
knowledge or not—

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search

warrant is whether it has been drawn in a manner that perjury could be charged
thereon and the affiant be held liable for damage caused. The oath required must
refer to the truth of the facts within the personal knowledge of the applicant for
search warrant, and/or his witnesses, not of the facts merely reported by a person
whom one considers to be reliable.

Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his deposition, do not
come up to the level of facts of his personal knowledge so much so that he cannot be held liable
for perjury for such allegations in causing the issuance of the questioned search warrant.

In the same Alvarez case, 18 the applicant stated that his purpose for applying for a search warrant
was that: "It had been reported to me by a person whom I consider to be reliable that there are being
kept in said premises books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as a money lender, challenging usurious rate of interests, in violation of
law." The Court held that this was insufficient for the purpose of issuing a search warrant.

In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had been a report to
the affiant by a person whom lie considered reliable that in said premises were "fraudulent books,
correspondence and records," this was likewise held as not sufficient for the purpose of issuing a
search warrant. Evidently, the allegations contained in the application of P/ Major Alladin
Dimagmaliw and the declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis
for the issuance of a valid search warrant. As held in the Alvarez case:

The oath required must refer to the truth of the facts within the personal knowledge of
the petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause.

Besides, respondent Judge did not take the deposition of the applicant as required by the Rules of
Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the complainant and his witnesses are
thus not sufficient. The examining Judge has to take depositions in writing of the complainant and
the witnesses he may produce and attach them to the record."

Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief and short.
Respondent Judge did not examine him "in the form of searching questions and answers." On the
contrary, the questions asked were leading as they called for a simple "yes" or "no" answer. As held
in Quintero vs. NBI," 21 the questions propounded by respondent Executive Judge to the applicant's
witness are not sufficiently searching to establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a general manner,
would not satisfy the requirements for issuance of a valid search warrant."
Manifestly, in the case at bar, the evidence failed to show the existence of probable cause to justify
the issuance of the search warrant. The Court also notes post facto that the search in question
yielded, no armalites, handguns, pistols, assorted weapons or ammunitions as stated in the
application for search warrant, the supporting deposition, and the search warrant the supporting
hand grenades were itself Only three (3) live fragmentation found in the searched premises of the
PUP, according to the affidavit of an alleged member of the searching party.

The Court avails of this decision to reiterate the strict requirements for determination of "probable
cause" in the valid issuance of a search warrant, as enunciated in earlier cases. True, these
requirements are stringent but the purpose is to assure that the constitutional right of the individual
against unreasonable search and seizure shall remain both meaningful and effective.

Petitioner also assails the validity of the search warrant on the ground that it failed to particularly
describe the place to be searched, contending that there were several rooms at the ground floor and
the second floor of the PUP.

The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and Identify the place intended .22 In the case at bar, the application
for search warrant and the search warrant itself described the place to be searched as the premises
of the Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila
more particularly, the offices of the Department of Military Science and Tactics at the ground floor,
and the Office of the President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at the
second floor. The designation of the places to be searched sufficiently complied with the
constitutional injunction that a search warrant must particularly describe the place to be searched,
even if there were several rooms at the ground floor and second floor of the PUP.

Petitioner next attacks the validity of the questioned warrant, on the ground that it was issued in
violation of the rule that a search warrant can be issued only in connection with one specific offense.
The search warrant issued by respondent judge, according to petitioner, was issued without any
reference to any particular provision of PD No. 1866 that was violated when allegedly P.D. No. 1866
punishes several offenses.

In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that the
natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no
specific offense had been alleged in the applications for a search warrant, and that it would be a
legal hearsay of the highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and
Customs Laws, Internal Revenue Code and Revised Penal Code" without reference to any
determinate provision of said laws and codes.

In the present case, however, the application for search warrant was captioned: "For Violation of PD
No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the
alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As
explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other
words, the search warrant was issued for the specific offense of illegal possession of firearms and
explosives. Hence, the failure of the search warrant to mention the particular provision of PD No. 1-
866 that was violated is not of such a gravity as to call for its invalidation on this score. Besides,
while illegal possession of firearms is penalized under Section 1 of PD No. 1866 and illegal
possession of explosives is penalized under Section 3 thereof, it cannot be overlooked that said
decree is a codification of the various laws on illegal possession of firearms, ammunitions and
explosives; such illegal possession of items destructive of life and property are related offenses or
belong to the same species, as to be subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866. As observed by respondent Judge: 24

The grammatical syntax of the phraseology comparative with the title of PD 1866 can
only mean that illegal possession of firearms, ammunitions and explosives, have
been codified under Section 1 of said Presidential Decree so much so that the
second and third are forthrightly species of illegal possession of firearms under
Section (1) thereof It has long been a practice in the investigative and prosecution
arm of the government, to designate the crime of illegal possession of firearms,
ammunitions and explosives as 'illegal possession of firearms, etc.' The Constitution
as well as the Rules of Criminal Procedure does not recognize the issuance of one
search warrant for illegal possession of firearms, one warrant for illegal possession of
ammunitions, and another for illegal possession of explosives. Neither is the filing of
three different informations for each of the above offenses sanctioned by the Rules of
Court. The usual practice adopted by the courts is to file a single information for
illegal possession of firearms and ammunitions. This practice is considered to be in
accordance with Section 13, Rule 110 of the 1985 Rules on Criminal Procedure
which provides that: 'A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a single punishment for various
offenses. Describably, the servers did not search for articles other than firearms,
ammunitions and explosives. The issuance of Search Warrant No. 87-14 is deemed
profoundly consistent with said rule and is therefore valid and enforceable.
(Emphasis supplied)

Finally, in connection with the petitioner's contention that the failure of the applicant to state, under
oath, the urgent need for the issuance of the search warrant, his application having been filed on a
Saturday, rendered the questioned warrant invalid for being violative of this Court's Circular No. 19,
dated 14 August 1987, which reads:

3. Applications filed after office hours, during Saturdays, Sundays and holidays shall
likewise be taken cognizance of and acted upon by any judge of the court having
jurisdiction of the place to be searched, but in such cases the applicant shall certify
and state the facts under oath, to the satisfaction of the judge, that the issuance is
urgent.

it would suffice to state that the above section of the circular merely provides for a guideline,
departure from which would not necessarily affect the validity of an otherwise valid search warrant.

WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned orders dated
9 March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 are hereby ANNULLED and
SET ASIDE.

The three (3) live fragmentation hand grenades which, according to Ricardo Y. Abando, a member
of the searching team, were seized in the washroom of petitioner's office at the PUP, are ordered
delivered to the Chief, Philippine Constabulary for proper disposition.

SO ORDERED.
 EN BANC

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City,
in a sworn statement filed with the Philippine Overseas Employment Administration
(POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang

panloloko sa
iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako.

Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said

complaint was assigned, sent to the petitioner the following telegram:
 YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM
ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST
YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate
a recruitment agency, public respondent Administrator Tomas D. Achacoso issued
his challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under

existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B.
Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure
and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong
policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into
the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers — practicing a dance number and saw about twenty
more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:
 On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January
26, 1988 be immediately returned on the ground that said seizure was contrary to
law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees right of the people "to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.

Unless said personal properties worth around TEN THOUSAND

PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with the
Pasig Provincial Fiscal, docketed as IS-88-836.1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.

Under the new Constitution, which states:

. . . 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. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that
mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants
and indeed, warrants of arrest, is to make him both judge and jury in his own right,
when he is neither. That makes, to our mind and to that extent, Presidential Decree
No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power
to recommend the arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose
of giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of
Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest
and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national security
 and public order or will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or non-
holder of authority if after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further exploitation of job-
seekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found
to be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect. Commented [A1]:

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by
Section 37 of the Immigration Law. We have ruled that in deportation cases, an arrest (of an
undesirable alien) ordered by the President or his duly authorized representatives, in order to carry
out a final decision of deportation is valid. 10 It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam
vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It
(the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment,

typewriters, cabinets, tables, communications/ recording equipment,
tape recorders, dictaphone and the like used and/or connected in the
printing of the "WE FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other

publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE

FORUM" and other subversive materials and propaganda, more
particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

 5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan." Reference herein to such historical episode would not be relevant for it
is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to
state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other,
who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom

the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to
as Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges
— issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court — because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners
in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants
and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to

the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein. 1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution 13provides:

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

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," — as alleged in the aforementioned applications — without
reference to any determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights — that the things to be seized be particularly described — as well as tending to defeat its
major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.

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

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually — but,
understandably — finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.