EN BANC

[G.R. No. 123595. December 12, 1997]

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS,

and PEOPLE OF THE PHILIPPINES, respondents.

DECISION
DAVIDE, JR., J.:

In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the
Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was
charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows:

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license and/or permit therefor from
the proper authorities.

At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered

a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1,
and A-2,[4] while the prosecution admitted that the police authorities were not armed with
a search warrant nor warrant of arrest at the time they arrested petitioner. [5]
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer;
and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated
National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at
about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot
patrol with three other police officers (all of them in uniform) along Quezon Boulevard,
Quiapo, Manila, near the Mercury Drug store at Plaza Miranda.They chanced upon two
groups of Muslim-looking men, with each group, comprised of three to four men, posted
at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These
men were acting suspiciously with [t]heir eyes moving very fast.[6]
Yu and his companions positioned themselves at strategic points and observed both
groups for about thirty minutes. The police officers then approached one group of men,
who then fled in different directions.As the policemen gave chase, Yu caught up with and
apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade
tucked inside petitioners front waist line.[7] Yus companion, police officer Rogelio
Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was
recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu
placed an X mark at the bottom of the grenade and thereafter gave it to his commander. [8]
On cross-examination, Yu declared that they conducted the foot patrol due to a report
that a group of Muslims was going to explode a grenade somewhere in the vicinity of
Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990,
likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a
grenade. The attempt was aborted when Yu and other policemen chased petitioner and
his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon
Boulevard when Yu saw them on 27 August 1990. Although they were not creating a
commotion, since they were supposedly acting suspiciously, Yu and his companions
approached them. Yu did not issue any receipt for the grenade he allegedly recovered
from petitioner.[9]
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner
and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith,
Serapio conducted the inquest of the two suspects, informing them of their rights to
remain silent and to be assisted by competent and independent counsel. Despite
Serapios advice, petitioner and Casan manifested their willingness to answer questions
even without the assistance of a lawyer. Serapio then took petitioners uncounselled
confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted
possession of the grenade.Thereafter, Serapio prepared the affidavit of arrest and
booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit
for examination.[11]
On cross-examination, Serapio admitted that he took petitioners confession knowing
it was inadmissible in evidence.[12]
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that on 22
March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and
PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on
the subject grenade detailing his name, the date and time he received the specimen.
During the preliminary examination of the grenade, he [f]ound that [the] major
components consisting of [a] high filler and fuse assembly [were] all present, and
concluded that the grenade was [l]ive and capable of exploding. On even date, he issued
a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August
1991.[13]
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22
July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the
evening of 27 August 1990, he went toPlaza Miranda to catch a breath of fresh air. Shortly
after, several policemen arrived and ordered all males to stand aside. The policemen
searched petitioner and two other men, but found nothing in their possession. However,
he was arrested with two others, brought to and detained at Precinct No. 3, where he was
accused of having shot a police officer. The officer showed the gunshot wounds he
allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then
inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot
me. Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with benches and
guns. Petitioner was once again searched, but nothing was found on him. He saw the
grenade only in court when it was presented.[14]
The trial court ruled that the warrantless search and seizure of petitioner was akin to
a stop and frisk, where a warrant and seizure can be effected without necessarily being
preceded by an arrest and whose object is either to maintain the status quo momentarily
while the police officer seeks to obtain more information. [15] Probable cause was not
required as it was not certain that a crime had been committed, however, the situation
called for an investigation, hence to require probable cause would have been
premature.[16] The RTC emphasized that Yu and his companions were [c]onfronted with
an emergency, in which the delay necessary to obtain a warrant, threatens the destruction
of evidence[17] and the officers [h]ad to act in haste, as petitioner and his companions were
acting suspiciously, considering the time, place and reported cases of bombing. Further,
petitioners group suddenly ran away in different directions as they saw the arresting
officers approach, thus [i]t is reasonable for an officer to conduct a limited search, the
purpose of which is not necessarily to discover evidence of a crime, but to allow the officer
to pursue his investigation without fear of violence.[18]
The trial court then ruled that the seizure of the grenade from petitioner was incidental
to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact to the police
investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient
evidence existed to establish petitioners guilt beyond reasonable doubt.
In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the
trial court thus found petitioner guilty of the crime of illegal possession of explosives under
Section 3 of P.D. No. 1866, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was

appealing to this Court. However, the record of the case was forwarded to the Court of
Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21]
In his Appellants Brief [22]
filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS
ARREST.
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-
APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS
A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.
 In sum, petitioner argued that the warrantless arrest was invalid due to absence of
any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade
seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial
court and prayed that its decision be affirmed in toto.[24]
In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a quo that the
grenade was planted by the police officers; and second, the factual finding of the trial
court that the grenade was seized from petitioners possession was not raised as an
issue. Further, respondent court focused on the admissibility in evidence of Exhibit D, the
hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals
ruled that the arrest was lawful on the ground that there was probable cause for the arrest
as petitioner was attempting to commit an offense, thus:

We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s] lurking
in Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous
to inspire belief.

In so doing, the Court of Appeals took into account petitioners failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a bomb
threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters
arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously,
the accumulation of which was more than sufficient to convince a reasonable man that
an offense was about to be committed. Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait
for Malacat to hurl the grenade, and kill several innocent persons while maiming
numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation should not be
the kind of proof necessary to convict, but rather the practical considerations of
everyday life on which a reasonable and prudent mind, and not legal technicians, will
ordinarily act.
 Finally, the Court of Appeals held that the rule laid down in People v.
Mengote,[26] which petitioner relied upon, was inapplicable in light of [c]rucial differences,
to wit:

[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no personal
knowledge that the person arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact
that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL
COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND
LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE
VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity
of the warrantless arrest and search, then disagrees with the finding of the Court of
Appeals that he was attempting to commit a crime, as the evidence for the prosecution
merely disclosed that he was standing at the corner of Plaza Miranda and Quezon
Boulevard with his eyes moving very fast and looking at every person that come (sic)
nearer (sic) to them. Finally, petitioner points out the factual similarities between his case
and that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged
decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat,
the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY
(30) YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully
possess grenades is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of
the penalty, and not the minimum, is taken into account. Since the maximum of the
penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the
Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980
(B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948, [28] Section 5(2) of
Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The
term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948,
and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of
Section 5(2) of Article VIII of the Constitution.
Petitioners Notice of Appeal indicated that he was appealing from the trial courts
decision to this Court, yet the trial court transmitted the record to the Court of Appeals
and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us, with
the petition for review as petitioners Brief for the Appellant, the comment thereon by the
Office of the Solicitor General as the Brief for the Appellee and the memoranda of the
parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found
in and seized from petitioners possession. Notably, Yu did not identify, in court, the
grenade he allegedly seized. According to him, he turned it over to his commander after
putting an X mark at its bottom; however, the commander was not presented to
corroborate this claim. On the other hand, the grenade presented in court and identified
by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and
police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months
later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony, Yu never
declared that the grenade passed on to Ramilo was the grenade the former confiscated
from petitioner. Yu did not, and was not made to, identify the grenade examined by
Ramilo, and the latter did not claim that the grenade he examined was that seized from
petitioner.Plainly, the law enforcement authorities failed to safeguard and preserve the
chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was
with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow
officers chased, but failed to arrest them, then considering that Yu and his three fellow
officers were in uniform and therefore easily cognizable as police officers, it was then
unnatural and against common experience that petitioner simply stood there in proximity
to the police officers. Note that Yu observed petitioner for thirty minutes and must have
been close enough to petitioner in order to discern petitioners eyes moving very fast.
 Finally, even assuming that petitioner admitted possession of the grenade during his
custodial investigation by police officer Serapio, such admission was inadmissible in
evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the
Constitution, which provide as follows:

SEC. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest.
No lawyer was present and Serapio could not have requested a lawyer to assist petitioner
as no PAO lawyer was then available. Thus, even if petitioner consented to the
investigation and waived his rights to remain silent and to counsel, the waiver was invalid
as it was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and
search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same.[31] The Constitutional prohibition against
unreasonable arrests, searches and seizures refers to those effected without a validly
issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests,
these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:

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 ***
A warrantless arrest under the circumstances contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been
described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs
searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent
searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk."[35]
 In the instant petition, the trial court validated the warrantless search as a stop and
frisk with the seizure of the grenade from the accused [as] an appropriate incident to his
arrest, hence necessitating a brief discussion on the nature of these exceptions to the
warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk"
and of a search incidental to a lawful arrest. These two types of warrantless searches
differ in terms of the requisite quantum of proof before they may be validly effected and
in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is questioned in a large majority of these
cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In
this instance, the law requires that there first be a lawful arrest before a search can be
made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the
arresting officer may search the person of the arrestee and the area within which the latter
may reach for a weapon or for evidence to destroy, and seize any money or property
found which was used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.[38]
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime
had just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a
"limited protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear
for his own or others' safety, he is entitled for the protection of himself and others
in the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him. Such a search is a reasonable search under the Fourth Amendment *** [39]

Other notable points of Terry are that while probable cause is not required to conduct a
"stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a
"stop and frisk." A genuine reason must exist, in light of the police officer's experience
and surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him.[41] Finally, a "stop-and-frisk" serves a two-fold interest: (1) the
general interest of effective crime prevention and detection, which underlies the
recognition that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible criminal
behavior even without probable cause; and (2) the more pressing interest of safety and
self-preservation which permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon that could unexpectedly
and fatally be used against the police officer.
Here, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member of the
group which attempted to bomb Plaza Miranda two days earlier. This claim is neither
supported by any police report or record nor corroborated by any other police officer who
allegedly chased that group. Aside from impairing Yu's credibility as a witness, this
likewise diminishes the probability that a genuine reason existed so as to arrest and
search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his
claim that petitioner and his companions had to be chased before being apprehended,
the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5)
other police officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were moving very fast
an observation which leaves us incredulous since Yu and his teammates were nowhere
near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not creating any commotion or
trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any
commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir.[42]
Third, there was at all no ground, probable or otherwise, to believe that petitioner was
armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged
grenade was discovered inside the front waistline of petitioner, and from all indications as
to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was
indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial
court:
When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person. [43]

What is unequivocal then in this case are blatant violations of petitioners rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of
Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of
said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of
Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY
MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released
from detention, unless his further detention is justified for any other lawful cause.
Costs de oficio.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Martinez, JJ., concur.
Panganiban, J., please see separate opinion.

[1]
Original Record (OR), 1.
[2]
Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or
Disposition, of Firearms, Ammunition or Explosives or Instruments used in the Manufacture of
Firearms, Ammunition or Explosives; and Imposing Stiffer Penalties for Certain Violations thereof
and for Relevant Purposes.
[3]
OR, 9.
[4]
The affidavit of arrest, booking sheet and letter-referral to the prosecutor, respectively.
[5]
OR, 21.
[6]
Transcript of Stenographic Notes (TSN), 14 April 1993, 12.
[7]
TSN, 14 April 1993, 13.
[8]
TSN, 14 April 1993, 14.
[9]
Id., 15-21.
[10]
Spelled as Suquila in the Affidavit of Arrest; Exhibit A; Rollo, CA-G.R. CR No. 15988 [CA Rollo] 7.
[11]
TSN 14 April 1993, 3-9.
[12]
TSN, 14 April 1993, 9.
[13]
TSN, 27 October 1992, 2-5.
[14]
TSN, 11 June 1993, 2-5.
[15]
Citing Posadas v. Court of Appeals, 188 SCRA 288 [1990].
[16]
Citing 1 Joaquin G. Bernas, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, A
COMMENTARY, 124 (1987 ed.) [hereinafter 1 Bernas].
[17]
Citing Schmerber v. California, 384 U.S. 757; 86 S. CT. 1826; 16 L: Ed. 2d. 908 (1966).
[18]
Citing Isagani A. Cruz, CONSTITUTIONAL LAW 141 (1987 ed.).
[19]
OR, 196-200; Annex A [should be E] of Petition, Rollo, 91-95. Per Judge Cesar Mindaro.
[20]
OR, 208.
[21]
CA Rollo, 37.
[22]
Id., 49 et seq.
[23]
210 SCRA 174 [1992].
[24]
Id., 84-100.
[25]
Annex A of the Petition, Rollo, 34-41. Per Garcia, C., J., ponente, with Labitoria, E., and Alio-
Hormachuelos, P., JJ., concurring.
[26]
Supra note 23.
[27]
Said Section provides:
SEC. 9. Jurisdiction. -- The Court of Appeals shall exercise:
xxx
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards, or commission, except
those falling within the appellate jurisdiction of the Supreme Court in accordance with the
Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and
subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.
[28]
The Section pertinently reads:
SEC. 17. Jurisdiction of the Supreme Court. x x x
The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm on
appeal, as the law or rules of court may provide, final judgments and decrees of inferior courts as
herein provided, in
(1) All criminal cases involving offenses for which the penalty imposed is death or life imprisonment; and
those involving other offenses which, although not so punished, arose out of the same occurrence
or which may have been committed by the accused on the same occasion, as that giving rise to
the mere serious offense, regardless of whether the accused are charged as principals,
accomplices or accessories, or whether they have been tried jointly or separately;
xxx
[29]
The Section relevantly reads:
SEC. 5. The Supreme Court shall have the following powers:
xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may
provide, final judgments and orders of the lower courts in:
xxx
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
[30]
The Section provides:
SEC. 3. How appeal taken.
xxx
The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or
where a lesser penalty is imposed but involving offenses committed on the same occasion or
arising out of the same occurrence that give rise to the more serious offense for which the penalty
of death or life imprisonment is imposed.
[31]
Art. III, Section 2, Constitution.
[32]
See 1 Bernas 86 (1987).
[33]
Mustang Lumber Inc. v. Court of Appeals, 257 SCRA 430, 450 [1996].
[34]
Moreno v. Ago Chi, 12 Phil. 439 [1909]; Rule 126, Section 12, Rules of Court.
[35]
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 [1968].
[36]
See Rex D. Davis, Federal Searches and Seizures 96-98, 120 [1964].
[37]
People v. Malmstedt, 198 SCRA 401, 422 [1991] per Narvasa, C.J., concurring and dissenting.
[38]
1 Bernas 105.
[39]
Terry, at 911. In fact, the Court noted that the "sole justification" for a stop-and-frisk was the "protection
of the police officer and others nearby;" while the scope of the search conducted in the case was
limited to patting down the outer clothing of petitioner and his companions, the police officer did not
place his hands in their pockets nor under the outer surface of their garments until he had felt
weapons, and then he merely reached for and removed the guns. This did not constitute a general
exploratory search, Id.
See MICHELE G. HERMAN, SEARCH AND SEIZURE CHECKLIST 202 [1994] (hereinafter
Hermann): "Nothing in Terry can be understood to allow a generalized cursory search for weapons
or, indeed, any search whatever for anything but weapons," quoting from Ybarra v. Illinois, 444
U.S. 85, 93-94 [1979].
[40]
We have held that probable cause means a fair probability that contraband or evidence of a crime will
be found, *** and the level of suspicion required for a Terry stop is obviously less demanding than
that for probable cause, in Hermann, at 187, quoting from United States v. Sokolow, 490 U.S. 1, 7
[1989].
Thus, it may be said that a brief on-the-street seizure does not require as much evidence of
probable cause as one which involves taking the individual to the station, as the former is relatively
short, less conspicuous, less humiliating, in 3 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment 9.1(d), at 342 [2nd ed. 1987] (underscoring supplied).
It is necessary to determine if "stop and frisk" may be distinguished from arrest and search, knowing
that the justification of stopping and frisking is less than the probable cause to arrest and search,
in 1 Joseph A. Varon, Searches, Seizures and Immunities 81 [2nd ed. 1974] (hereinafter 1 Varon)
(underscoring supplied).
[41]
See 1 Varon, at 84.
[42]
TSN, 14 April 1993, 19-20.
[43]
RTC Decision, 2; CA Rollo, 28.
 THIRD DIVISION

[G.R. No. 134503. July 2, 1999]

JASPER AGBAY, petitioner, vs. THE HONORABLE DEPUTY

OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO NATIVIDAD,
JR. and SPO2 ELEAZAR M. SOLOMON, respondents.

DECISION
GONZAGA-REYES, J.:

This petition for certiorari seeks to nullify the Resolution of the Deputy Ombudsman for the
Military dated 19 January 1998[1] which recommended the dismissal of the criminal complaint filed
by petitioner against herein private respondents for violation of Article 125 of the Revised Penal
Code for delay in the delivery of detained persons, and the Order of April 13 1998[2] which denied
his motion for reconsideration.
The pertinent facts leading to the filing of the petition at bar are as follows:
On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was arrested and
detained at the Liloan Police Station, Metro Cebu for an alleged violation of R.A. 7610, the Special
Protection of Children Against Child abuse, Exploitation and Discrimination Act.[3] The following
day, or on September 8, 1997, a Complaint for violation of R.A. 7610 was filed against petitioner
and Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by one Joan
Gicaraya for and in behalf of her daughter Gayle[4] The complaint, insofar as pertinent, reads as
follows:

That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan,
Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable
Court, the above-named accused, did then and there, willfully, feloniously and
unlawfully, conspiring, confederating, helping with one another, while accused
JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA
AMIGABLE GICAYARA, his companion block the sight of the Private Complainant,
Mrs. JOAN A. GICAYARA, while on board a tricycle going their destinations. Upon
initial investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN
JUGALBOT was released and accused JASPER AGBAY is presently detain Liloan
Police Station Jail. Medical Certificate issued from Don Vicente Sotto Memorial
Medical Center, Cebu City is hereto attached.

On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan demanding
the immediate release of petitioner considering that the latter had failed to deliver the detained
Jasper Agbay to the proper judicial authority within thirty-six (36) hours from September 7,
1997.[5] Private respondents did not act on this letter and continued to detain petitioner. [6]
On September 12, 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu issued
an order, denominated as Detention During the Pendency of the Case, committing petitioner to the
jail warden of Cebu City.[7] Five (5) days later, or on September 17, 1997, petitioner was ordered
released by the said court after he had posted bond.[8]
On September 26, 1997, petitioner filed a complaint for delay in the delivery of detained
persons against herein private respondents SPO4 Nemesio Natividad, Jr., SPO2 Eleazar M.
Salomon and other unidentified police officers stationed at the Liloan Police Substation, before
the Office of the Deputy Ombudsman for the Visayas.[9]
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on
November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution containing the
following dispositive portion:

WHEREFORE, finding probable cause for the crime in Violation of Republic Act
7610, it is hereby recommended that an INFORMATION be filed against the two
aforenamed accused.

Forward the record of this case to the Provincial Fiscals Office for appropriate
action.[10]

By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995 of the
Office of the Ombudsman,[11] the case for delay in delivery filed by petitioner against herein private respondents
before the Deputy Ombudsman for the Visayas was transferred to the Deputy Ombudsman for the Military for its
proper disposition. Thus, it was this office which acted on the complaint, now denominated as OMB-VIS-CRIM-97-
0786, and which issued the questioned Resolution dated January 19, 1998 recommending its dismissal against herein
private respondents. Petitioner moved for reconsideration of this Resolution but this motion was denied in an Order
dated April 13, 1998.

Hence, this petition for certiorari.

The grounds relied upon in the present petition[12] are as follows:
I.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

RELYING ON MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED
10 OCTOBER 1995, OF THE OFFICE OF THE OMBUDSMAN IN HOLDING
THAT IT HAS COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE
BEFORE IT, THE SAID CIRCULAR BEING UNCONSTITUTIONAL AND
ILLEGAL, HENCE, NULL AND VOID.
II.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT

HOLDING THAT IT IS BEYOND ITS COMPETENCE TO DETERMINE
WHETHER OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-
COMPOSTELA HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED
AGAINST HEREIN PETITIONER.
III.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT

HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A
PRELIMINARY INVESTIGATION, IS NOT THE PROPER JUDICIAL
AUTHORITY CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL
CODE AND, HENCE, THE FILING OF THE COMPLAINT BEFORE IT FOR THE
PURPOSE OF CONDUCTING A PRELIMINARY INVESTIGATION DID NOT
INTERRUPT THE PERIOD PRESCRIBED BY ART. 125.
IV.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

HOLIDING THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF
DETENTION IS IRRELEVANT TO THE ISSUE OF CRIMINAL LIABILITY OF
PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS.
V.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN

HOLDING THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE
NECESSARY COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED
A FORMAL COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF
LILOAN-COMPOSTELA.

On the first issue, petitioner argues that due to the civilian character of the Philippine National
Police, the Office of the Deputy Ombudsman for the Military, by virtue of the description of the
Office, has no competence or jurisdiction to act on his complaint against private respondents who
are members of the PNP. Petitioner also questions the constitutionality of Memorandum Circular
No. 14 insofar as it purports to vest the Office of the Deputy Ombudsman for Military Affairs with
jurisdiction to investigate all cases against personnel of the Philippine National Police.
There is no dispute as to the civilian character of our police force. The 1987 Constitution, in
Section 6, Article XVI, has mandated the establishment of one police force, which shall be national
in scope and civilian in character(underscoring supplied). Likewise, R.A. 6975[13] is categorical in
describing the civilian character of the police force.[14] The only question now is whether
Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman for the Military
with jurisdiction to investigate complaints against members of the PNP, violates the latters civilian
character.
 As opined by the Office of the Solicitor General in its Comment dated 7 December 1998[15],
the issue as to whether the Deputy Ombudsman for the Military has the authority to investigate
civilian personnel of the government was resolved in the affirmative in the case of Acop v. Office
of the Ombudsman.[16] In that case, the petitioners, who were members of the Philippine National
Police questioned the jurisdiction of the Deputy Ombudsman to investigate the alleged shootout
of certain suspected members of the Kuratong Baleleng robbery gang; this Court held that:

The deliberations on the Deputy for the military establishment do not yield conclusive
evidence that such deputy is prohibited from performing other functions or duties
affecting non-military personnel. On the contrary, a review of the relevant
Constitutional provisions reveal otherwise.

As previously established, the Ombudsman `may exercise such other powers or

perform such functions or duties as Congress may prescribe through
legislation. Therefore, nothing can prevent Congress from giving the Ombudsman
supervision and control over the Ombudsmans deputies, one being the deputy for the
military establishment. In this light, Section 11 of R.A. No. 6770 provides:

SEC. 11. Structural Organization.- The authority and responsibility for the exercise of
the mandate of the Office of the Ombudsman and for the discharge of its powers and
functions shall be vested in the Ombudsman, who shall have supervision and control
of the said Office.

While Section 31 thereof declares:

SEC, 31. Designation of Investigators and Prosecutors.- The Ombudsman may utilize
the personnel of his office and/or designate or deputize any fiscal, state prosecutor to
assist in the investigation and prosecution of certain cases.Those designated or
deputized to assist him herein shall be under his supervision and control.

Accordingly, the Ombudsman may refer cases involving non-military personnel for
investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no
irregularity attended the referral by the Acting Ombudsman of the Kuratong
Baleleng case to respondent Casaclang who, in turn, created a panel of investigators.[17]

The cited case is determinative of the issue. However, petitioner, in his Reply to Comment
dated February 1, 1999, argues that the ruling in the Acop case is not on all fours with the case at
bar[18]. Petitioner states that the doctrine laid down in the said case is simply that the Ombudsman
may refer cases involving non-military personnel for investigation by the Deputy for Military
Affairs. This doctrine, petitioner argues, applies only to isolated or individual cases involving non-
military personnel referred by the Ombudsman to the Deputy for Military Affairs and does not
apply when, as in this case, there is a wholesale or indiscriminate referral of such cases to the
Deputy Ombudsman for Military Affairs in the form of an Office Memorandum Circular.
 Petitioners arguments do not convince as there is no basis for the distinction.
There is no basis in the above-cited decision to limit the referral of cases involving non-
military personnel to the Deputy Ombudsman for Military Affairs to isolated or individual cases.
The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is simply exercising
the power vested in the Ombudsman to utilize the personnel of his office and/or designate or
deputize any fiscal, state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution of certain cases. This Court,
absent any grave abuse of discretion, may not interfere with the exercise by the Ombudsman of
his power of supervision and control over the said Office.
Petitioner further argues that Memorandum Circular No. 14 violates the clear intent and policy
of the Constitution and of R.A. 6975 to maintain the civilian character of the police force and
would render nugatory and meaningless the distinction between cases involving civilian and
military personnel and the creation of separate divisions of the Ombudsman.[19]
Said contentions are misplaced.
The Deputy Ombudsman for the Military, despite his designation as such, is by no means a
member of the military establishment. The said Office was established to extend the Office of the
Ombudsman to the military establishment just as it champions the common people against
bureaucratic indifference. The Office was intended to help the ordinary foot soldiers to obtain
redress for their grievances against higher authorities and the drafters of the Constitution were
aware that the creation of the Office, which is seemingly independent of the President, to perform
functions which constitutionally should be performed by the President, might be in derogation of
the powers of the President as Commander-In-Chief of the Armed Forces[20]
It must be borne in mind that the Office of the Ombudsman was envisioned by the framers of
the 1987 Constitution as the eyes and ears of the people[21] and a champion of the citizen.[22] Sec.
12, Art. XI of the 1987 Constitution describes the Ombudsman and his deputies as protectors of
the people. Thus, first and foremost, the Ombudsman and his deputies, including the Deputy
Ombudsman for the Military owe their allegiance to the people and ordinary citizens; it is clearly
not a part of the military. We fail to see how the assumption of jurisdiction by the said office over
the investigation of cases involving the PNP would detract from or violate the civilian character
of the police force when precisely the Office of the Ombudsman is a civilian office.
The other issues raised by petitioner concerns the application of Art. 125 of the Revised Penal
Code which provides as follows:

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. -
The penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of: twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; and thirty-six hours (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.

In the case at bar, petitioner was arrested and detained at the Liloan Police Station on 7
September 1997 for an alleged violation of R.A. 7610, specifically section 5(b) thereof[23]. This crime
carries a penalty of reclusion temporal in its medium period to reclusion perpetua, an afflictive penalty. Under these
circumstances, a criminal complaint or information should be filed with the proper judicial authorities within thirty
six (36) hours of his arrest.

As borne by the records before us the mother of private complainant, Joan Gicaraya, filed a
complaint on 8 September 1997 against petitioner for violation of R.A. 7610 before the 7th
Municipal Circuit Trial Court of Liloan, Metro Cebu.
Petitioner contends that the act of private complainant in filing the complaint before the
MCTC was for purposes of preliminary investigation as the MCTC has no jurisdiction to try the
offense. This act of private complainant petitioner argues, was unnecessary, a surplusage which
did not interrupt the period prescribed by Art. 125[24] considering that under the Rules it is the
Regional Trial Court which has jurisdiction to try the case against him. As such, upon the lapse of
the thirty-six hours given to the arresting officers to effect his delivery to the proper Regional Trial
Court, private respondents were already guilty of violating Art. 125. Thus, petitioner argues, when
the Judge-Designate of the 7th MCTC issued a Commitment Order on September 12, 1997, he
was acting contrary to law since by then there was no basis for the continued detention of
petitioner.[25]
In addressing the issue, the Office of the Deputy Ombudsman for the Military in its 13 April
1998 Order, stated that the duty of filing the corresponding complaint in court was fulfilled by
respondent when the formal complaint was filed on September 8, 1997 with the 7th MCTC of
Liloan-Compostela, barely 20 hours after the arrest of herein complainant of September 7,
1997.[26] The Solicitor General, for his part, argues that while a municipal court judge may conduct
preliminary investigations as an exception to his normal judicial duties, he still retains the authority
to issue an order of release or commitment. As such, upon the filing of the complaint with the
MCTC, there was already compliance with the very purpose and intent of Art. 125[27]
The core issue is whether the filing of the complaint with the Municipal Trial Court constitutes
delivery to a proper judicial authority as contemplated by Art. 125 of the Revised Penal Code.
Article 125 of the Revised Penal Code is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without permitting him to go on
bail[28]. More specifically, it punishes public officials or employees who shall detain any person for
some legal ground and shall fail to deliver such person to the proper judicial authorities within the
periods prescribed by law. The continued detention of the accused becomes illegal upon the
expiration of the periods provided for by Art. 125 without such detainee having been delivered to
the corresponding judicial authorities[29]
The words judicial authority as contemplated by Art. 125 mean the courts of justices or judges
of said courts vested with judicial power to order the temporary detention or confinement of a
person charged with having committed a public offense, that is, the Supreme Court and other such
inferior courts as may be established by law.[30]
 Petitioner takes great pains in arguing that when a municipal trial court judge, as in the instant
case, conducts a preliminary investigation, he is not acting as a judge but as a fiscal. In support,
petitioner cites the cases of Sangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260 SCRA
561, and Castillo vs. Villaluz, 171 SCRA 39, where it was held that when a preliminary
investigation is conducted by a judge, he performs a non-judicial function as an exception to his
usual duties. Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862,
that the city fiscal is not the proper judicial authority referred to in Art. 125 is applicable.
Petitioners reliance on the cited cases is misplaced. The cited cases of Sangguniang
Bayan and Castillo dealt with the issue of whether or not the findings of the Municipal Court Judge
in a preliminary investigation are subject to review by provincial and city fiscals. There was no
pronouncement in these cases as to whether or not a municipal trial court, in the exercise of its
power to conduct preliminary investigations, is a proper judicial authority as contemplated by Art.
125.
Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police, supra, since
the facts of this case are different. In Sayo, the complaint was filed with the city fiscal of
Manila who could not issue an order of release or commitment while in the instant case, the
complaint was filed with a judge who had the power to issue such an order. Furthermore, in the
Resolution denying the Motion for Reconsideration of the Sayo case[31], this Court even made a
pronouncement that the delivery of a detained person is a legal one and consists in making a charge
or filing a complaint against the prisoner with the proper justice of the peace or judge of Court of
First Instance in provinces, and in filing by the city fiscal of an information with the corresponding
city courts after an investigation if the evidence against said person warrants.
The power to order the release or confinement of an accused is determinative of the issue. In
contrast with a city fiscal, it is undisputed that a municipal court judge, even in the performance
of his function to conduct preliminary investigations, retains the power to issue an order of release
or commitment[32]. Furthermore, upon the filing of the complaint with the Municipal Trial Court,
the intent behind Art. 125 is satisfied considering that by such act, the detained person is informed
of the crime imputed against him and, upon his application with the court, he may be released on
bail[33]. Petitioner himself acknowledged this power of the MCTC to order his release when he
applied for and was granted his release upon posting bail[34]. Thus, the very purpose underlying
Article 125 has been duly served with the filing of the complaint with the MCTC. We agree with
the position of the Ombudsman that such filing of the complaint with the MCTC interrupted the
period prescribed in said Article.
Finally, we note that it was the mother of private complainant who filed the complaint against
petitioner with the 7th MCTC of Liloan, Metro Cebu. If there was any error in this procedure,
private respondents should not be held liable. In the same manner, petitioners argument that the
controversial orders issued by the MCTC are contrary to law does not give rise to criminal liability
on the part of the respondents. Respondent police officers may have rendered themselves open to
sanctions if they had released petitioners without the order of the court, knowing fully well that a
complaint was already filed with it.
WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed January
19, 1998 Resolution and the April 13, 1998 Order of the Office of the Deputy Ombudsman for the
Military, the Court resolves to DISMISS the petition. No pronouncement as to costs.
 SO ORDERED.
Vitug, (Acting Chairman), Panganiban, and Purisima, JJ., concur.
Romero, J., abroad, on official business leave.

[1]
Rollo, pp. 42-43.
[2]
Rollo, pp. 34-36.
[3]
Rollo, p. 6.
[4]
Annex B of Petition; Rollo, p. 37.
[5]
Annex C of Petition; Rollo, p. 38
[6]
Rollo, p. 7.
[7]
Annex D of Petition: Rollo, p. 39.
[8]
Annex E of Petition; Rollo, p. 40.
[9]
Annex F of Petition; Rollo, p. 41.

[10]
Rollo, p. 8.

[11]
Which reads, in part, as follows:
In pursuance of the Offices mandate to promote efficient service to the people and conformably with the powers vested
in the Ombudsman under Section 15, par. 10 and Section 31 of RA 6770, the Deputy Ombudsman for the Military
shall continue to investigate all cases against personnel of the PNP, BFP, and BJMP.
[12]
Rollo, pp. 9-10.
[13]
Entitled, An Act Establishing the Philippine National Police Under a Reorganized Department of the Interior and
Local Government and For Other Purposes, otherwise known as the Department of the Interior and Local Government
Act of 1990.
[14]
R.A. 6975, Section 2. Declaration of Policy.--It is hereby declared that the policy of the State to promote peace
and order, ensure public safety and further strenghten local government capability aimed towards the effective delivery
of the basic services to the citizenry through the establishment of a highly efficient and competent police force that is
national in scope and civilian in character. xxx
The police force shall be organized, trained and equipped primarily for the performance of police functions. Its
national scope and civilian character shall be paramount. xxx
[15]
Rollo, pp. 79-81.
[16]
248 SCRA 566.
[17]
Id. pp. 587-588
[18]
Rollo, p. 92.
[19]
Reply; Rollo, pp. 95-96.
[20]
Record of the Constitutional Commission, vol. 2, p. 318-320 (hereinafter 2 Record).
[21]
2 Record, p. 267.
[22]
2 Record, p. 268.
[23]
Sec. 5. Child Prostitution and Other Sexual Abuse.-
xxx
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse:xxx
[24]
Rollo, p. 98.
[25]
Rollo, p. 27.
[26]
Rollo, p. 35.
[27]
Comment, p. 83.
[28]
Laurel v. Misa, 76 Phil 372.
[29]
Lino v. Fugoso, 77 Phil. 933.
[30]
Sayo v. Chief of Police of Manila, 80 Phil 859 citing Section 1, Article VIII of the Constitution.
[31]
80 Phil. 875.
[32]
Rule 112, Sec. 6 (b), Rules of Court. When warrant of arrest may issue.- (a) By the Regional Trial Court.-Upon
the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.
(b) By the Municipal Trial Court.- If the municipal trial judge conducting the preliminary investigation is satisfied
after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions
and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest.
[33]
Rule 112, Sec. 5, Rules of Court. Duty of investigating judge.- Within ten (10) days after the conclusion of the
preliminary investigation, the investigating judge shall transmit to the provincial or city fiscal, for appropriate action,
the resolution of the case, which shall include:(a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits
and other supporting evidence of the parties; (c) the undertaking or bail of the accused; (d) the order of release of the
accused and the cancellation of his bail bond, if the resolution is for the dismissal of the complaint.

xxx
Rule 114, Section 4, Rules of Court. Bail, a matter of right.- All persons in custody shall: (a) before or after conviction
by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial
Court; and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on
recognizance as prescribed by law or this Rule.
[34]
Rollo, p. 40.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there
is kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is — Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in
the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.

The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo
and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacenderoof Davao, to
bring before the court the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were
notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting
in the same capacity. On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court
to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila
to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may
have been convicted of vagrancy, to the homeland. New York and other States have statutes
providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands — and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other
citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
 residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to — "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application
for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction
of the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the
writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .
 It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right
that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being brought to their
notice. . . .

The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent,
and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine
and imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to
 produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to the custody of
the marshall until he should produce the negroes, or be otherwise discharged in due course of law.
The court afterwards ordered that Davis be released upon the production of two of the negroes, for
one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then
in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort
to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this undesirable position, must be granted. When
all is said and done, as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more
than one hundred and fifty women were assembled and placed aboard a steamer and transported to
Davao, considering that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted
without authority of any legal provision which constitutes an exception to the laws guaranteeing the
liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city
and his subordinates, if we take into account the difficulties encountered in bringing the said women
who were free at Davao and presenting them before this court within the time fixed, inasmuch as it
does not appear that the said women were living together in a given place. It was not because they
were really detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who continued
living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally
and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so
many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which
being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection
the interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of
their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the population from the
social evils and diseases which the houses of prostitution situated in Gardenia Street have been
producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and
the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free
practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more humane and
less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures
have always had in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account
of sickness or infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped
affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless,
a second order referred to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women who were not in Manila,
unless they could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined in rounding up the women,
and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to
Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders.
Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the respondents in their first answer at the trial of December
2, 1918, giving as one of the reasons for their inability to present any of the said women that the
latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other
hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as
chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and second orders; that neither of
the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila,
who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms
the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the
power to enforce decorum in the courts and obedience to their orders and just measures is
so essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
 remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so far as the legislative department is concerned,
is obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has been declared, stands
upon the same immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own expense while still
others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of
the petition interposed by the said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are circumstances which should be
taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the Code of Civil
Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this
proceeding should be transmitted to the Attorney-General in order that, after a study of the same
and deduction from the testimony which he may deem necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall
present the corresponding informations for the prosecution and punishment of the crimes which
have been committed on the occasion when the illegal detention of the women was carried into
effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while the women were in Davao. This
will be one of the means whereby the just hope expressed in the majority decision will be realized,
that is, that in the Philippine Islands there should exist a government of laws and not a government
of men and that this decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwph! 1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate
the boundaries of the protected area of the cognate rights to free speech and peaceable
assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired
Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from
the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once
there, and in an open space of public property, a short program would be held. 2 During the course of
the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the
resolution adopted on the last day by the International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so that it may be delivered
to the United States Ambassador. The march would be attended by the local and foreign participants
of such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the organization to hold a rally. On October
25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General
Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was
unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was
due to police intelligence reports which strongly militate against the advisability of issuing such
permit at this time and at the place applied for." 6 To be more specific, reference was made to
persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the
police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or
any other enclosed area where the safety of the participants themselves and the general public may
be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The
Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the
Court granting the mandatory injunction prayed for on the ground that there was no showing of the
existence of a clear and present danger of a substantive evil that could justify the denial of a permit.
On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground
that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is without
prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the
matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit:
"No law shall be passed abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like
free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or
action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right
people to meet peaceably for consultation and discussion of matters Of public concern.17 It is entitled
to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on
a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive
evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had
occasion to stress that it is a necessary consequence of our republican institutions and complements
the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of
the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the
right to freedom of speech and of the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a
limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a limitation on the exercise of this right,
so fundamental to the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was
rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate
of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful
means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means
more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult
attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided.
The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will
mark the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement, and the greater
the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." 24 It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be
avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice
Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such use of
the streets and public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915
decision, where this Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the
only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be
granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy,
hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt
on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that
case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor
shall first be explained from the selectmen of the town or from licensing committee,' was construed
by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States,
in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme
Court, held that 'a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the statute is construed by the
state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with a view to conserving
the public convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief
Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by
the Constitution, imply the existence of an organized society maintaining public order without which
liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a restriction
of the use of highways in that relation is designed to promote the public convenience in the interest
of all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based
on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a
signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with the Secretary General of the
United Nations on November 15. As of that date then, it was binding on the Philippines. The second
paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate
steps to protect the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the extent
that the Vienna Convention is a restatement of the generally accepted principles of international law,
it should be a part of the law of the land. 34 That being the case, if there were a clear and present
danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal point would
be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified,
or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown
then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on
the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing
the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the
absence of a clear and present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of
Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at
the International Conference for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the
gates of the United States Embassy located at the same street. To repeat, it is settled law that as to
public places, especially so as to parks and streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit, whether an individual or a group. If it were, then
the freedom of access becomes discriminatory access, giving rise to an equal protection question.
The principle under American doctrines was given utterance by Chief Justice Hughes in these
words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is
not as to the auspices under which the meeting is 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." 36 There could be danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty
parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption — especially so where the assembly is scheduled for a specific public — place is that
the permit must be for the assembly being held there. The exercise of such a right, in the language
of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that
it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa
ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is
that a permit should recognize the right of the applicants to hold their assembly at a public place of
their choice, another place may be designated by the licensing authority if it be shown that there is a
clear and present danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was
satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it
should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a
position to cope with such emergency should it arise That is to comply with its duty to extend
protection to the participants of such peaceable assembly. Also from him came the commendable
admission that there were the least five previous demonstrations at the Bayview hotel Area and
Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was
made clear by petitioner, through counsel, that no act offensive to the dignity of the United States
Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all
the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant
Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and
alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice
Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police
protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, — even
more so than on the other departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to
the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas,
that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There
was no showing, however, that the distance between the chancery and the embassy gate is less
than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application of such
ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there
was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated,
Should it come, then the qualification and observation of Justices Makasiar and Plana certainly
cannot be summarily brushed aside. The high estate accorded the rights to free speech and
peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of
the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in
this case, the proposed march and rally being scheduled for the next day after the hearing, this
Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of
October 25, 1983. It may be noted that the peaceful character of the peace march and rally on
October 26 was not marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national government and the
citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right
to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.
The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that
"the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do, precedence and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph
1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and
present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a
previous restraint or censorship that the licensing authority does not rely solely on his own appraisal
of what public welfare, peace or safety may require. To justify such a limitation there must be proof
of such weight and sufficiency to satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice
Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced.
There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these

functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so stringent
that it would be inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence or in destruction
of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to
prevent crimes are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that
it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their right to peaceable assembly and
freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqw â£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
 of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void
upon its face. It does not make comfort or convenience in the use of streets or parks
the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the
participants "staying at a discreet distance, but ever ready and alert to perform their duty." But
should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall
former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a
crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities" and render illusory the right of peaceable assembly, thus:
têñ.£îhqwâ£

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this would in
no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire
on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and
suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however
to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked
by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right
to freedom of speech and to peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries" and that the city or town mayors are not conferred "the power
to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or specify the
streets or public places where the parade or procession may pass or the meeting may be held." The
most recent graphic demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington twenty years ago
under the late assassinated black leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the conscience of the nation," and
awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the
American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the
summary given by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that
"the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do, precedence and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights, is therein restated in paragraph
1, thus: "The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would
justify adverse action on the application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the existence of such clear and
present danger. As stated in our Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of a permit which amounts to a
previous restraint or censorship that the licensing authority does not rely solely on his own appraisal
of what public welfare, peace or safety may require. To justify such a limitation there must be proof
of such weight and sufficiency to satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not enough." As stated by Justice
Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of speech to free men from
the bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced.
There must be reasonable ground to believe that the danger apprehended
is imminent. There must be reasonable ground to believe that the evil to be
prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these

functions essential (for) effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so stringent
that it would be inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence or in destruction
of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to
prevent crimes are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that
it may be exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their right to peaceable assembly and
freedom of expression," (at page 14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqw â£

* * * Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen * * * to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void
upon its face. It does not make comfort or convenience in the use of streets or parks
the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent 'riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain
order in connection with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to
ensure a peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers
disrupting the same, concommitantly with the duty of the police to extend protection to the
participants "staying at a discreet distance, but ever ready and alert to perform their duty." But
should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to recall
former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a
crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous
rising against the authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqwâ£

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the right to assemble and
to petition for redress of grievances would become a delusion and snare and the
attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor.
(Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any incidents of disorder, this would in
no way show the Court's mandatory injunction to have been wrongfully issued. The salutary desire
on the part of respondent to prevent disorder cannot be pursued by the unjustified denial and
suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just
want to state for the record that I voted for the issuance ex-parte of a preliminary mandatory
injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however
to voice a reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked
by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the
chancery of a foreign embassy would be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to implement a treaty obligation of the
Philippines under the 1961 Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be
validly invoked whenever its application would collide with a constitutionally guaranteed right such as
freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of
any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy
violates Ordinance No. 7295 of the City of Manila.

Footnotes têñ.£îhqwâ£

1 Section 9, Article IV of the Constitution.

2 Petition. par. 4.

3 Petitioner was represented by Professor Haydee Yorac of the College of Law,

University of the Philippines, assisted by former Senator Jose W. Diokno.
Respondent was represented by Assistant Solicitor General Montenegro.

4 Petition, 2.

5 He was assisted by Solicitor Roberto A. Abad.

6 Answer of Respondent, 2, Annex 1.

7 Ibid, Annex 1-A.

8 Ibid, Annex 1.

9 Minute resolution dated October 25, 1983, 4.

10 Article IV, Section 9 of the Constitution.

11 Cf. Thornhill v. Alabama, 310 US 88 (1940). Justice Malcolm identified freedom of

expression with the right to a full discussion of public affairs." (U.S. v. Bustos, 37 Phil.
731, 740 [1918]). Justice Laurel was partial to the ringing words of John Milton, "the
liberty to know, to utter, and to argue freely according to conscience, above all
liberties." (Planas v. Gil, 67 Phil. 81 [1939]). Justice Johnson spoke of freedom of
expression in terms of "a full and free discussion of all affairs of public interest." For
him then, free speech includes complete liberty to "comment upon the administration
of Government as well as the conduct of public men." U S. v. Perfecto,

43 Phil. 58, 62 [1922]). When it is remembered further that time has upset many
fighting faiths" there is like] to be a more widespread acceptance of the view of
Justice Holmes "that the ultimate good, desired is better reached by free trade in
ideas that the best test of truth is the power of the thought to get accepted that the
competition of the market; and that truth is the only ground upon which their wishes
safely can be carried out." (Abrams v. United States, 250 US 616, 630 [1919]).

12 U.S. v. Bustos, 37 Phil. 1131 (1918); Quisumbing v. Lopez, 96 Phil. 510 (1935).

13 U.S. v. Perfecto, 43 Phil. 58 (1922).

14 Yap v. Boltron 100 Phil. 324 (1956).

15 People v. Alarcon, 69 Phil. 265 (1939); Cabansag v. Fernandez, 102 Phil. 152
(1957); People v. Castelo H. Abaya, 114 Phil. 892 (1962); Bridges v. California, 314
US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craio v. Harney 331 US
367 (1947); Woods v. Georgia, 370 US 375 (1962).

16 Gonzales v. Commission on Elections, L-27833, April 18, 1969, 27 SCRA 835,

857.

17 Cf. Ibid.
18 Ibid.

19 Cf. United States v. Bustos, 37 Phil. 731 (1918).

20 323 US 516 (1945).

21 Cf. Schneider v. Irvington 308 US 147 (1939).

22 Milk Wagon Drivers Union of Chicago, Local 753 v Meadowmoor Dairies, Inc.,
312 US 287, 293 (1940).

23 7 Phil. 422.

24 Ibid, 426.

25 307 US 495.

26 ibid 515.

27 80 Phil. 71 (1948).

28 30 Phil. 602.

29 Ibid, 606.

30 80 Phil. at 78.

31 312 US at 524.

32 Cf. Brownlie Principles of Public International Law, 2nd ed., 339-341. 3,3

33 Article 11, Section 3 reads in full:

34 The Philippines renounces war as an instrument of national policy, adopts the

generally accepted principles of international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
all nations," 31 The Philippines can rightfully take credit for the acceptance, as early
as 1951, of the binding force of the Universal Declaration of Human Rights even if
the rights and freedoms therein declared are considered by other jurisdictions as
merely a statement of aspirations and not law until translated into the appropriate
covenants. In the following cases decided in 1951, Mejoff v. Director of Prisons, 90
Phil. 70; Borovsky v. Commissioner of Immigration, 90 Phil. 107; Chirskoff v.
Commissioner of Immigration, 90 Phil. 256; Andreu v. Commissioner of Immigration,
90 Phil. 347, the Supreme Court applied the Universal Declaration of Human Rights.

35 According to its Article 19: "Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to
seek, receive, and impart information and Ideas through any media and regardless of
frontiers." The first paragraph of Article 20 reads; "Everyone has the right to freedom
of peaceful assembly and association.
36 De Jorge v. Oregon, 299 US 353, 364 (1937).

37 Schneider v. IrvIngton 308 US 147,163 (1939).

38 G.R. No. L-31687, February 26, 1970, 31 SCRA 731. Two justices dissented,
Justice, later Chief Justice, Castro and the present Chief Justice, then a Justice.

39 G.R. No. 60294, April 30, 1982.

40 Opinion citing par. 4 of Petition. têñ.£îhqwâ£

Teehankee, J.: ñé+.£ªw ph!1

1 80 Phil. 1.

2 71 U.S. Law ed., 1105-1107.

3 307 U.S. 496, 515, 83 Law ed., 1423.