PROBLEM AREAS IN LEGAL ETHICS FULL TEXT

1. G.R. No. 95026 October 4, 1991 SPOUSES PEDRO and ANGELINA TELAN, petitioner, vs. COURT OF APPEALS, ROBERTO TELAN, and SPOUSES VICENTE and VIRGINIA TELAN, respondent. SARMIENTO, J.:p This is a petition for review of the Resolution dated December 28, 1989 of the Court of Appeals 1 which considered the appeal of the herein petitioner, spouses Pedro and Angelina Telan (hereinafter PEDRO and ANGELINA), ABANDONED and DISMISSED, for their failure to file an appeal brief within the reglementary period, pursuant to Section I(f), Rule 50 of the Rules of the Court. The only issue involved in this petition for review on certiorari is: Whether or not the representation of the petitioner by a fake lawyer amounts to a deprivation of his right to counsel and hence a lack of due process. The circumstances under which the case arose are as follows: The petitioner PEDRO is a retired government employee and high school graduate who settled in 1973 on a property abutting the national highway in Guibang, Gamu, Isabela. 2 In 1977, when the government needed the land, PEDRO was compelled to transfer his residence to the other side of the national highway on a lot owned by Luciano Sia where he rented 750 square meters for P50.00 a month. 3 Because the lot was en route to the shrine of Our Lady of Guibang which was frequented by pilgrims, PEDRO set up business enterprises such as a vulcanizing shop and an eatery. Shortly thereafter, his cousins, the herein private respondents Roberto Telan and Spouses Vicente and virginia Telan (hereinafter ROBERTO, VICENTE, and VIRGINIA), followed suit by setting up their own eatery within the same lot. 4 On March 27, 1984, PEDRO and his spouses ANGELINA received a Notice to Vacate from the Development Bank of the Philippine (DBP). This was followed by a letter from VIRGINIA herself, reiterating the said demand. Apparently VICENTE and VIRGINIA had executed a Deed of Sale with Assumption of Mortgage with Sia over the said lot shared by PEDRO and ANGELINA. 5 Soon, DBP as the mortgagee of Sia's lot, foreclosed the mortgage.

On June 7, 1984, the DBP and the Spouses VICENTE and VIRGINIA TELAN filed a suit at the Regional Trial Court of Ilagan, Isabela to evict PEDRO TELAN's family from the lot. The case was dismissed. Meanwhile, on September 22, 1986, ROBERTO TELAN was able to secure a Certificate of Title in his name over the contested lot. 6 With the new Transfer Certificate of Title, ROBERTO and the spouses VICENTE and VIRGINIA filed a complaint denominated as Accion Publiciana against the petitioners, Spouses PEDRO and ANGELINA. 7 At this point, PEDRO and ANGELINA hired the services of Atty. Antonio Paguiran to defend them in the suit. 8 On October 27, 1988, the lower court awarded the possession of the property in question to ROBERTO and Souses VICENTE and VIRGINIA TELAN. PEDRO and ANGELINA informed Atty. Paguiran that they wanted to appeal the case, but since Atty. Paguiran was disposed not to do so, PEDRO and ANGELINA asked another person to sign for them. 9 In the course of their eatery business, petitioner ANGELINA TELAN became acquainted with Ernesto Palma who represented himself to be a "lawyer." Having no counsel to assist them in their appeal, Angelina asked "Atty. Palma" to handle their case. he cosented and the petitioners paid his "lawyer's fees." 10 In the meantime, on August 5, 1988, PEDRO TELAN broke his hip while he was getting off from a passenger jeepney. On September 5, 1988, unable to withstand the pain, he went to the Philippine General Hospital for treatment where he was diagnosed to have a "fractured, closed, complete, femoral neck garden type IV (R) femur." 11 On the spot, the doctors recommended an operation. Another operation followed on September 22, 1988. All the while, from September 5, 1988 up to October 2, 1988, PEDRO was confined a the PGH. He had to go back to PGH several times for check-up even after was released from the hospital. 12 It was only by January 1990 that PEDRO managed to walk again although still with much difficulty. Meanwhile, on December 28, 1989, the Court of Appeals issued a Resolution which considered the appeal interposed by petitioners as abandoned and dismissed "for failure ... to file an appeal brief within the reglementary period, pursuant to Section 1 (f), Rule 50 of the Rules of Court. 13 The petitioners were not aware of the dismissal of their appeal. They only came to know about it on May 1990, when somebody in the Isabela Provincial Capitol at Ilagan informed PEDRO TELAN immediately verified the facts. "Atty. Palma" could no longer be found. PEDRO in verifying the existence of "Atty. Palma" in the Roll of Attorneys with the Bar

Confidant's Office. This was followed by the filing of Criminal Case No. 389-90 for Estafa against "Atty. Palma." 15 By now PEDRO had realized that "Atty. Palma" was a fake. The Court of Appeals in its Resolution dated August 27, 1990 ruled as follows: xxx xxx xxx It should be recalled that the instant appeal was dismissed only on December 28, 1989 (p. 13 rollo). Prior thereto, appellant's counsel received on July 25, 1989 this Court's letternotice dated July 14, 1989 requiring him to file the appellants' brief within forty-five (45) days from receipt thereof. Per report dated October 185, 1989 of the brief, non has yet been filed as of said date and hence, this Court issued a Resolution dated October 20, 1989 for appellants to show cause, within ten (10) days, why the appeal should not be dismissed for failure to file the appellants' brief within the reglementary period. Hence from July 25, 1989 when appellants' counsel received this Court's letter-notice to file brief until the JRD's report on December 15, 1989 that no appellant's brief has been filed, a period of about four (4) months and twenty-three (23) days have elapsed, thus giving appellants enough to time to file their brief. Unfortunately, no appellants' brief was ever filed during said period. Let it be stressed that the rules prescribing the time within which certain acts must be done or certain proceedings taken are absolutely indispensable to the prevention of needless delay and the orderly and speedy discharge of judicial business. (FJR Garment Industries v. CA, 130 SCRA 216, 218). 16 On January 24, 1990, the Resolution dated December 28, 1989 became final and was entered on May 24, 1990 in the Book of Entries of Judgment. On September 12, 1990, the presiding judge of the lower court issue the Writ of Demolition for the enforcement of the decision. 17 The Petition for Review on certiorari before this Court was filed on October 18, 1990 by the spouses PEDRO and ANGELINA TELAN with an Urgent Prayer for Temporary Restraining Order/Preliminary Injunction. 18 On October 24, 1990, after deliberating on the petition for review on certiorari, the Court without giving due course required the respondents to COMMENT within ten (10) days form notice thereof. At the same time, as prayed for, effective "immediately" and "continuing until further orders from this Court", a TEMPORARY RESTRAINING ORDER was issued enjoining the respondents from enforcing the Order dated September 12, 1990 issued in Civil Case No. 279. In due time, after the filing of the necessary pleadings, the petition was given due course and the parties were ordered to submit simultaneously their respective memoranda. The petitioners filed their memorandum while the private respondents manifested to adopt their Comments dated November 5, 1990. However, after the filing of the petitioners' memorandum, the private respondents filed on June 10, 1991, a pleading they denominated as Addendum. Apparently, changing their minds, on July 23, 1991, the private respondents filed their memorandum.

We rule for the petitioners. We hold that they had not been accorded due process of law because they lost their to appeal when deprived of the right to counsel. Article III, Section 2 of the Constitutional provides: xxx xxx xxx No person shall be deprived of life, or property, without due process of law, nor shall any person be denied the equal protection of the law. The right to counsel in civil cases exists just as forcefully as in criminal cases, 19 specially so when as a consequence, life, liberty, or property is subjected to restraint or in danger of loss. In criminal cases, the right of an accused person to be assisted by a member of the bar is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel. 20 There is no reason why the rule in criminal cases has to be different from that in civil cases. The preeminent right to due process of law applies not only to life and liberty but also to property. There can be no fair hearing unless a party, who is in danger of losing his house in which he and his family live and in which he has established a modest means of livelihood, is given the right to be heard by himself and counsel. Even the most experienced lawyers ge tangled in the web of procedure. To demand as much form ordinary citizens whose only compelle intrare is their sense of right would turn the legal system into a intimidating monstrosity where an individual may be stripped of his property rights not because he has no right to the property but because he does not know how to establish such right. The right to counsel is absolute and may be invoked at all times. More so, in the case of an on-going litigation, it is a right that must be exercised at every step of the way, with the lawyer faithfully keeping his client company. No arrangement or interpretation of law could be as absurd as the position that the right to counsel exists only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal. This is the reason why under ordinary circumstances, a lawyer can not simply refuse anyone the counsel that only the exercise of his office can impart. 21 Curiously, the counsel of the private respondents, ROBERTO TELAN and spouses VICENTE and VIRGINIA, would still insist that the petitioners, spouses PEDRO and ANGELINA TELAN, had lost their right to appeal because of the negligence of their counsel, referring to "Atty. Palma."

A client is generally bound by the action of his counsel in the management of a litigation even by the attorney's mistake or negligence in procedural technique. 22 But how can there be negligence by the counsel in the case at bar when the "lawyer", "Atty. Palma," turned out to be fake? The Affidavit of the petitioner PEDRO TELAN, the sworn Petition, the Certifications of the Bar Confidant's Office and the Integrated Bar of the Philippines, and the submitted records of Criminal Case No. 389-90 more than sufficiently establish the existence of an Ernesto Palma who misrepresented himself as a lawyer. 23 WHEREFORE, the Petitioner is GRANTED; the proceedings in CA-G.R CV No. 20786 are hereby REINSTATED and the respondent Court of Appeals is ordered to give DUE COURSE to the appeal and to decide the same on the merits. SO ORDERED. 2. G.R. No. L-12426 February 16, 1959

PHILIPPINE LAWYER'S ASSOCIATION, petitioner, vs. CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent. Arturo A. Alafriz for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent. MONTEMAYOR, J.: This is the petition filed by the Philippine Lawyer's Association for prohibition and injunction against Celedonio Agrava, in his capacity as Director of the Philippines Patent Office. On may 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27, 1957 an examination for the purpose of determining who are qualified to practice as patent attorneys before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the rules of practice before said office. According to the circular, members of the Philippine Bar, engineers and other persons with sufficient scientific and technical training are qualified to take the said examination. It would appear that heretofore, respondent Director has been holding similar examinations. It is the contention of the petitioner Philippine Lawyer's Association that one who has passed the bar examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the cat of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an examination given by the Patent Office as a condition precedent to their being allowed to practice before said office, such as representing applicants in the preparation and prosecution of applications for patent, is in excess of his jurisdiction and is in violation of the law.

In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of patent cases "does not involve entirely or purely the practice of law but includes the application of scientific and technical knowledge and training, so much so that, as a matter of actual practice, the prosecution of patent cases may be handled not only by lawyers, but also engineers and other persons with sufficient scientific and technical training who pass the prescribed examinations as given by the Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial body from requiring further condition or qualification from those who would wish to handle cases before the Patent Office which, as stated in the preceding paragraph, requires more of an application of scientific and technical knowledge than the mere application of provisions of law; . . . that the action taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law of the Philippines, which similar to the United States Patent Law, in accordance with which the United States Patent Office has also prescribed a similar examination as that prescribed by respondent. . . . Respondent further contends that just as the Patent law of the United States of America authorizes the Commissioner of Patents to prescribe examinations to determine as to who practice before the United States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No. 165. Although as already stated, the Director of Patents, in the past, would appear to have been holding tests or examinations the passing of which was imposed as a required qualification to practice before the Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so, specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And we have given it careful thought and consideration. The Supreme Court has the exclusive and constitutional power with respect to admission to the practice of law in the Philippines1 and to any member of the Philippine Bar in good standing may practice law anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as to whether or not appearance before the patent Office and the preparation and the prosecution of patent applications, etc., constitutes or is included in the practice of law. The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other papers incident to actions and social proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law corporation services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and guardianship have been held to constitute law practice as do the preparation and drafting of legal instruments, where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Emphasis supplied).

Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 (1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours). In our opinion, the practice of law includes such appearance before the Patent Office, the representation of applicants, oppositors, and other persons, and the prosecution of their applications for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the first place, although the transaction of business in the Patent Office involves the use and application of technical and scientific knowledge and training, still, all such business has to be rendered in accordance with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the interpretation and application of other laws and legal principles, as well as the existence of facts to be established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it was known or used by others in the Philippines before the invention thereof by the inventor named in any printed publication in the Philippines or any foreign country more than one year before the application for a patent therefor, or if it had been in public use or on sale in the Philippines for more than one year before the application for the patent therefor. Section 10 provides that the right to patent belongs to the true and actual inventor, his heirs, legal representatives or assigns. Section 25 and 26 refer to connection of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a patent; that although any person may apply for such cancellation, under Section 29, the Solicitor General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements of a petition for cancellation. Section 31 and 32 provide for a notice of hearing of the petition for cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under Section 34, at any time after the expiration of three years from the day the patent was granted, any person patent on several grounds, such as, if the patented invention is not being worked in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines on a commercial scale, or if the demand for the patented article in the Philippines is not being

met to an adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on reasonable terms or by reason of the condition attached by him to the license, purchase or use of the patented article or working of the patented process or machine of production, the establishment of a new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or medicine or is necessary to public health or public safety. All these things involve the applications of laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for which a member of the bar has been prepared. In support of the proposition that much of the business and many of the act, orders and decisions of the Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent Law, Republic Act No. 165, Section 61, provides that: . . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a patent or to obtain a compulsory license, and any party to any other proceeding in the Office may appeal to the Supreme Court from any final order or decision of the director. In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial body, but rather to a board of scientists, engineers or technical men, which is not the case. Another aspect of the question involves the consideration of the nature of the functions and acts of the Head of the Patent Office. . . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions, exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to give authenticated copies to any person, on payment of the legal fees. (40 Am. Jur. 537). (Emphasis supplied). . . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an application the commissioner should decide not only questions of law, but also questions of fact, as whether there has been a prior public use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis supplied). The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold that a member of the bar, because of his legal knowledge and training, should be allowed to practice before the Patent Office, without further examination or other qualification. Of course, the Director of Patents, if he deems it advisable or necessary, may require that members of the bar practising before him enlist the assistance of technical men and scientist in the preparation of papers and documents, such as, the drawing or technical description of an invention or machine sought to be patented, in the same way that a lawyer

filing an application for the registration of a parcel of land on behalf of his clients, is required to submit a plan and technical description of said land, prepared by a licensed surveyor. But respondent Director claims that he is expressly authorized by the law to require persons desiring to practice or to do business before him to submit an examination, even if they are already members of the bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent Law; and of the United States Patent Office in Patent Cases prescribes an examination similar to that which he (respondent) has prescribed and scheduled. He invites our attention to the following provisions of said Rules of Practice: Registration of attorneys and agents. A register of an attorneys and a register agents are kept in the Patent Office on which are entered the names of all persons recognized as entitled to represent applicants before the Patent Office in the preparation and prosecution of applicants for patent. Registration in the Patent Office under the provisions of these rules shall only entitle the person registered to practice before the Patent Office. (a) Attorney at law. Any attorney at law in good standing admitted to practice before any United States Court or the highest court of any State or Territory of the United States who fulfills the requirements and complied with the provisions of these rules may be admitted to practice before the Patent Office and have his name entered on the register of attorneys. xxx xxx xxx

(c) Requirement for registration. No person will be admitted to practice and register unless he shall apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and furnish all requested information and material; and shall establish to the satisfaction of the Commissioner that he is of good moral character and of good repute and possessed of the legal and scientific and technical qualifications necessary to enable him to render applicants for patent valuable service, and is otherwise competent to advise and assist him in the presentation and prosecution of their application before the Patent Office. In order that the Commissioner may determine whether a person seeking to have his name placed upon either of the registers has the qualifications specified, satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and technical matters must be submitted and an examination which is held from time to time must be taken and passed. The taking of an examination may be waived in the case of any person who has served for three years in the examining corps of the Patent Office. Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in Patent Cases is authorized by the United States Patent Law itself, which reads as follows: The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules and regulations governing the recognition of agents, attorneys,

or other persons representing applicants or other parties before his office, and may require of such persons, agents, or attorneys, before being recognized as representatives of applicants or other persons, that they shall show they are of good moral character and in good repute, are possessed of the necessary qualifications to enable them to render to applicants or other persons valuable service, and are likewise to competent to advise and assist applicants or other persons in the presentation or prosecution of their applications or other business before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing, suspend or exclude, either generally or in any particular case from further practice before his office any person, agent or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any matter, deceive, mislead, or threaten any applicant or prospective applicant, or other person having immediate or prospective applicant, or other person having immediate or prospective business before the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the person so refused recognition or so suspended by the district court of the United States for the District of Columbia under such conditions and upon such proceedings as the said court may by its rules determine. (Emphasis supplied) Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons desiring to practice before him should submit to and pass an examination. We reproduce said Section 78, Republic Act No. 165, for purposes of comparison: SEC. 78. Rules and regulations. The Director subject to the approval of the Secretary of Justice, shall promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office. The above provisions of Section 78 certainly and by far, are different from the provisions of the United States Patent Law as regards authority to hold examinations to determine the qualifications of those allowed to practice before the Patent Office. While the U.S. Patent Law authorizes the Commissioner of Patents to require attorneys to show that they possess the necessary qualifications and competence to render valuable service to and advise and assist their clients in patent cases, which showing may take the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent on this important point. Our attention has not been called to any express provision of our Patent Law, giving such authority to determine the qualifications of persons allowed to practice before the Patent Office. Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and make regulations or general orders not inconsistent with law, to secure the harmonious and efficient administration of his branch of the service and to carry into full effect the laws relating to matters within the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the Department Head,

makes all rules and regulations necessary to enforce the provisions of said code. Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate all needful rules and regulations for the effective enforcement of the provisions of the code. We understand that rules and regulations have been promulgated not only for the Bureau of Customs and Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business in and to enforce the law for said bureaus. Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before they are allowed to practice before said Patent Office, then there would be no reason why other bureaus specially the Bureau of Internal Revenue and Customs, where the business in the same area are more or less complicated, such as the presentation of books of accounts, balance sheets, etc., assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau of Customs, may not also require that any lawyer practising before them or otherwise transacting business with them on behalf of clients, shall first pass an examination to qualify. In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this Tribunal to practice law, and in good standing, may practice their profession before the Patent Office, for the reason that much of the business in said office involves the interpretation and determination of the scope and application of the Patent Law and other laws applicable, as well as the presentation of evidence to establish facts involved; that part of the functions of the Patent director are judicial or quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the Supreme Court. For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass the same before being permitted to appear and practice before the Patent Office. No costs. 3. A.C. No. 5299 August 19, 2003

ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information Office, Complainant, vs. ATTY. RIZALINO T. SIMBILLO, Respondent. x-----------------------x G.R. No. 157053 August 19, 2003

ATTY. RIZALINO T. SIMBILLO, Petitioner, vs. IBP COMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his

capacity as Assistant Court Administrator and Chief, Public Information Office, Respondents. RESOLUTION YNARES-SANTIAGO, J.: This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: "ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667."1 Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. Rizalino Simbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at the time of filing of the case and the other half after a decision thereon has been rendered. Further research by the Office of the Court Administrator and the Public Information Office revealed that similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.2 On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.3 In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified.4 The case was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.5 On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002-306,6 finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was noted by this Court on November 11, 2002.7

In the meantime, respondent filed an Urgent Motion for Reconsideration,8 which was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 20029 Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, "Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public Information Office, Respondents." This petition was consolidated with A.C. No. 5299 per the Courts Resolution dated March 4, 2003. In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to submit the case for resolution on the basis of the pleadings.10 Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its early resolution on the basis of pleadings and records thereof. 11 Respondent, on the other hand, filed a Supplemental Memorandum on June 20, 2003. We agree with the IBPs Resolutions Nos. XV-2002-306 and XV-2002-606. Rules 2.03 and 3.01 of the Code of Professional Responsibility read: Rule 2.03. A lawyer shall not do or permit to be done any act designed primarily to solicit legal business. Rule 3.01. A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or unfair statement or claim regarding his qualifications or legal services. Rule 138, Section 27 of the Rules of Court states: SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so. It has been repeatedly stressed that the practice of law is not a business. 12 It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.13 The gaining of a livelihood should be a secondary consideration.14 The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.15 The following elements distinguish the legal profession from a business: 1. A duty of public service, of which the emolument is a by-product, and in which one may attain the highest eminence without making much money;

2. A relation as an "officer of the court" to the administration of justice involving thorough sincerity, integrity and reliability; 3. A relation to clients in the highest degree of fiduciary; 4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.16 There is no question that respondent committed the acts complained of. He himself admits that he caused the publication of the advertisements. While he professes repentance and begs for the Courts indulgence, his contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer, he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.17 Ten months later, he caused the same advertisement to be published in the October 5, 2001 issue of Buy & Sell.18 Such acts of respondent are a deliberate and contemptuous affront on the Courts authority. What adds to the gravity of respondents acts is that in advertising himself as a self-styled "Annulment of Marriage Specialist," he wittingly or unwittingly erodes and undermines not only the stability but also the sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from the time of the filing of the case,19 he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bonds, to do so. Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar.20 Thus, the use of simple signs stating the name or names of the lawyers, the office and residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now acceptable.21 Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:22 Such data must not be misleading and may include only a statement of the lawyers name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinctions; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented.

The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management, or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower dignity or standing of the profession. The use of an ordinary simple professional card is also permitted. The card may contain only a statement of his name, the name of the law firm which he is connected with, address, telephone number and special branch of law practiced. The publication of a simple announcement of the opening of a law firm or of changes in the partnership, associates, firm name or office address, being for the convenience of the profession, is not objectionable. He may likewise have his name listed in a telephone directory but not under a designation of special branch of law. (emphasis and italics supplied) WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely. Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance. 4. January 9, 1973 IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE PHILIPPINES. RESOLUTION

PER CURIAM: On December 1, 1972, the Commission on Bar Integration 1 submitted its Report dated November 30, 1972, with the "earnest recommendation" on the basis of the said Report and the proceedings had in Administrative Case No. 526 2 of the Court, and "consistently with the views and counsel received from its [the Commission's] Board of Consultants, as well as the overwhelming nationwide sentiment of the Philippine Bench and Bar" that "this Honorable Court ordain the integration of the Philippine Bar as soon as possible through the adoption and promulgation of an appropriate Court Rule." The petition in Adm. Case No. 526 formally prays the Court to order the integration of the Philippine Bar, after due hearing, giving recognition as far as possible and practicable to existing provincial and other local Bar associations. On August 16, 1962, arguments in favor of as well as in opposition to the petition were orally expounded before the Court. Written

oppositions were admitted, 3 and all parties were thereafter granted leave to file written memoranda. 4 Since then, the Court has closely observed and followed significant developments relative to the matter of the integration of the Bar in this jurisdiction. In 1970, convinced from preliminary surveys that there had grown a strong nationwide sentiment in favor of Bar integration, the Court created the Commission on Bar Integration for the purpose of ascertaining the advisability of unifying the Philippine Bar. In September, 1971, Congress passed House Bill No. 3277 entitled "An Act Providing for the Integration of the Philippine Bar, and Appropriating Funds Therefor." The measure was signed by President Ferdinand E. Marcos on September 17, 1971 and took effect on the same day as Rep. Act 6397. This law provides as follows: SECTION 1. Within two years from the approval of this Act, the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar under such conditions as it shall see fit in order to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively. SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, to carry out the purposes of this Act. Thereafter, such sums as may be necessary for the same purpose shall be included in the annual appropriations for the Supreme Court. SEC. 3. This Act shall take effect upon its approval. The Report of the Commission abounds with argument on the constitutionality of Bar integration and contains all necessary factual data bearing on the advisability (practicability and necessity) of Bar integration. Also embodied therein are the views, opinions, sentiments, comments and observations of the rank and file of the Philippine lawyer population relative to Bar integration, as well as a proposed integration Court Rule drafted by the Commission and presented to them by that body in a national Bar plebiscite. There is thus sufficient basis as well as ample material upon which the Court may decide whether or not to integrate the Philippine Bar at this time. The following are the pertinent issues: (1) Does the Court have the power to integrate the Philippine Bar? (2) Would the integration of the Bar be constitutional? (3) Should the Court ordain the integration of the Bar at this time?

A resolution of these issues requires, at the outset, a statement of the meaning of Bar integration. It will suffice, for this purpose, to adopt the concept given by the Commission on Bar Integration on pages 3 to 5 of its Report, thus: Integration of the Philippine Bar means the official unification of the entire lawyer population of the Philippines. This requires membership and financial support (in reasonable amount) of every attorney as conditions sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court. The term "Bar" refers to the collectivity of all persons whose names appear in the Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include all lawyers. Complete unification is not possible unless it is decreed by an entity with power to do so: the State. Bar integration, therefore, signifies the setting up by Government authority of a national organization of the legal profession based on the recognition of the lawyer as an officer of the court. Designed to improve the position of the Bar as an instrumentality of justice and the Rule of Law, integration fosters cohesion among lawyers, and ensures, through their own organized action and participation, the promotion of the objectives of the legal profession, pursuant to the principle of maximum Bar autonomy with minimum supervision and regulation by the Supreme Court. The purposes of an integrated Bar, in general, are: (1) Assist in the administration of justice; (2) Foster and maintain on the part of its members high ideals of integrity, learning, professional competence, public service and conduct; (3) Safeguard the professional interests of its members; (4) Cultivate among its members a spirit of cordiality and brotherhood; (5) Provide a forum for the discussion of law, jurisprudence, law reform, pleading, practice and procedure, and the relations of the Bar to the Bench and to the public, and publish information relating thereto; (6) Encourage and foster legal education; (7) Promote a continuing program of legal research in substantive and adjective law, and make reports and recommendations thereon; and (8) Enable the Bar to discharge its public responsibility effectively.

Integration of the Bar will, among other things, make it possible for the legal profession to: (1) Render more effective assistance in maintaining the Rule of Law; (2) Protect lawyers and litigants against the abuse of tyrannical judges and prosecuting officers; (3) Discharge, fully and properly, its responsibility in the disciplining and/or removal of incompetent and unworthy judges and prosecuting officers; (4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence; (5) Have an effective voice in the selection of judges and prosecuting officers; (6) Prevent the unauthorized practice of law, and break up any monopoly of local practice maintained through influence or position; (7) Establish welfare funds for families of disabled and deceased lawyers; (8) Provide placement services, and establish legal aid offices and set up lawyer reference services throughout the country so that the poor may not lack competent legal service; (9) Distribute educational and informational materials that are difficult to obtain in many of our provinces; (10) Devise and maintain a program of continuing legal education for practising attorneys in order to elevate the standards of the profession throughout the country; (11) Enforce rigid ethical standards, and promulgate minimum fees schedules; (12) Create law centers and establish law libraries for legal research; (13) Conduct campaigns to educate the people on their legal rights and obligations, on the importance of preventive legal advice, and on the functions and duties of the Filipino lawyer; and (14) Generate and maintain pervasive and meaningful country-wide involvement of the lawyer population in the solution of the multifarious problems that afflict the nation. Anent the first issue, the Court is of the view that it may integrate the Philippine Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution, "to promulgate rules

concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." Indeed, the power to integrate is an inherent part of the Court's constitutional authority over the Bar. In providing that "the Supreme Court may adopt rules of court to effect the integration of the Philippine Bar," Republic Act 6397 neither confers a new power nor restricts the Court's inherent power, but is a mere legislative declaration that the integration of the Bar will promote public interest or, more specifically, will "raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility more effectively." Resolution of the second issue whether the unification of the Bar would be constitutional hinges on the effects of Bar integration on the lawyer's constitutional rights of freedom of association and freedom of speech, and on the nature of the dues exacted from him. The Court approvingly quotes the following pertinent discussion made by the Commission on Bar Integration pages 44 to 49 of its Report: Constitutionality of Bar Integration Judicial Pronouncements. In all cases where the validity of Bar integration measures has been put in issue, the Courts have upheld their constitutionality. The judicial pronouncements support this reasoning: Courts have inherent power to supervise and regulate the practice of law. The practice of law is not a vested right but a privilege; a privilege, moreover, clothed with public interest, because a lawyer owes duties not only to his client, but also to his brethren in the profession, to the courts, and to the nation; and takes part in one of the most important functions of the State, the administration of justice, as an officer of the court. Because the practice of law is privilege clothed with public interest, it is far and just that the exercise of that privilege be regulated to assure compliance with the lawyer's public responsibilities. These public responsibilities can best be discharged through collective action; but there can be no collective action without an organized body; no organized body can operate effectively without incurring expenses; therefore, it is fair and just that all attorneys be required to contribute to the support of such organized body; and, given existing Bar conditions, the most efficient means of doing so is by integrating the Bar through a rule of court that requires all lawyers to pay annual dues to the Integrated Bar. 1. Freedom of Association.

To compel a lawyer to be a member of an integrated Bar is not violative of his constitutional freedom to associate (or the corollary right not to associate). Integration does not make a lawyer a member of any group of which he is not already a member. He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to provide an official national organization for the well-defined but unorganized and incohesive group of which every lawyer is already a member. Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections as he chooses. The body compulsion to which he is subjected is the payment of annual dues. Otherwise stated, membership in the Unified Bar imposes only the duty to pay dues in reasonable amount. The issue therefore, is a question of compelled financial support of group activities, not involuntary membership in any other aspect. The greater part of Unified Bar activities serves the function of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people. The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program the lawyers. Assuming that Bar integration does compel a lawyer to be a member of the Integrated Bar, such compulsion is justified as an exercise of the police power of the State. The legal profession has long been regarded as a proper subject of legislative regulation and control. Moreover, the inherent power of the Supreme Court to regulate the Bar includes the authority to integrate the Bar. 2. Regulatory Fee. For the Court to prescribe dues to be paid by the members does not mean that the Court levies a tax. A membership fee in the Integrated Bar is an exaction for regulation, while the purpose of a tax is revenue. If the Court has inherent power to regulate the Bar, it follows that as an incident to regulation, it may impose a membership fee for that purpose. It would not be possible to push through an Integrated Bar program without means to defray the concomitant expenses. The doctrine of implied powers necessarily includes the power to impose such an exaction. The only limitation upon the State's power to regulate the Bar is that the regulation does not impose an unconstitutional burden. The public interest

promoted by the integration of the Bar far outweighs the inconsequential inconvenience to a member that might result from his required payment of annual dues. 3. Freedom of Speech. A lawyer is free, as he has always been, to voice his views on any subject in any manner he wishes, even though such views be opposed to positions taken by the Unified Bar. For the Integrated Bar to use a member's due to promote measures to which said member is opposed, would not nullify or adversely affect his freedom of speech. Since a State may constitutionally condition the right to practice law upon membership in the Integrated Bar, it is difficult to understand why it should become unconstitutional for the Bar to use the member's dues to fulfill the very purposes for which it was established. The objection would make every Governmental exaction the material of a "free speech" issue. Even the income tax would be suspect. The objection would carry us to lengths that have never been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of war or of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been exalted above the powers and the compulsion of the agencies of Government. 4. Fair to All Lawyers. Bar integration is not unfair to lawyers already practising because although the requirement to pay annual dues is a new regulation, it will give the members of the Bar a new system which they hitherto have not had and through which, by proper work, they will receive benefits they have not heretofore enjoyed, and discharge their public responsibilities in a more effective manner than they have been able to do in the past. Because the requirement to pay dues is a valid exercise of regulatory power by the Court, because it will apply equally to all lawyers, young and old, at the time Bar integration takes effect, and because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not unfair. To resolve the third and final issue whether the Court should ordain the integration of the Bar at this time requires a careful overview of the practicability and necessity as well as the advantages and disadvantages of Bar integration. In many other jurisdictions, notably in England, Canada and the United States, Bar integration has yielded the following benefits: (1) improved discipline among the members of the Bar; (2) greater influence and ascendancy of the Bar; (3) better and more meaningful

participation of the individual lawyer in the activities of the Integrated Bar; (4) greater Bar facilities and services; (5) elimination of unauthorized practice; (6) avoidance of costly membership campaigns; (7) establishment of an official status for the Bar; (8) more cohesive profession; and (9) better and more effective discharge by the Bar of its obligations and responsibilities to its members, to the courts, and to the public. No less than these salutary consequences are envisioned and in fact expected from the unification of the Philippine Bar. Upon the other hand, it has been variously argued that in the event of integration, Government authority will dominate the Bar; local Bar associations will be weakened; cliquism will be the inevitable result; effective lobbying will not be possible; the Bar will become an impersonal Bar; and politics will intrude into its affairs. It is noteworthy, however, that these and other evils prophesied by opponents of Bar integration have failed to materialize in over fifty years of Bar integration experience in England, Canada and the United States. In all the jurisdictions where the Integrated Bar has been tried, none of the abuses or evils feared has arisen; on the other hand, it has restored public confidence in the Bar, enlarged professional consciousness, energized the Bar's responsibilities to the public, and vastly improved the administration of justice. How do the Filipino lawyers themselves regard Bar integration? The official statistics compiled by the Commission on Bar integration show that in the national poll recently conducted by the Commission in the matter of the integration of the Philippine Bar, of a total of 15,090 lawyers from all over the archipelago who have turned in their individual responses, 14,555 (or 96.45 per cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted against it, and 157 (or 1.04 per cent) are non-commital. In addition, a total of eighty (80) local Bar association and lawyers' groups all over the Philippines have submitted resolutions and other expressions of unqualified endorsement and/or support for Bar integration, while not a single local Bar association or lawyers' group has expressed opposed position thereto. Finally, of the 13,802 individual lawyers who cast their plebiscite ballots on the proposed integration Court Rule drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor thereof, 662 (or 4.80 per cent) vote against it, and 285 (or 2.06 per cent) are non-committal. 5 All these clearly indicate an overwhelming nationwide demand for Bar integration at this time. The Court is fully convinced, after a thoroughgoing conscientious study of all the arguments adduced in Adm. Case No. 526 and the authoritative materials and the mass of factual data contained in the exhaustive Report of the Commission on Bar Integration, that the integration of the Philippine Bar is "perfectly constitutional and legally unobjectionable," within the context of contemporary conditions in the Philippines, has become an imperative means to raise the standards of the legal profession, improve the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively. ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of Article VIII of the Constitution, hereby ordains the integration of the Bar of the Philippines in accordance with the attached COURT RULE, effective on January 16, 1973.

Concepcion, C.J., Makalintal, Zaldivar, Castillo, Fernando, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. Footnotes 1 Created by Supreme Court Resolution of October 5, 1970 "for the purpose of ascertaining the advisability of the integration of the Bar in this jurisdiction," the Commission is composed of Supreme Court Associate Justice Fred Ruiz Castro (Chairman), Senator Jose J. Roy, retired Supreme Court Associate Justice Conrado V. Sanchez, Supreme Court Associate Justice (then Court of Appeals Presiding Justice) Salvador V. Esguerra, U. P. Law Center Director Crisolito Pascual, Ex-Senator Tecla San Andres Ziga, and San Beda Law Dean and Constitutional Convention Delegate Feliciano Jover Ledesma (Members). 2 Filed on July 11, 1962 (by a Committee composed of Jose W. Diokno, Roman Ozaeta, Jose P. Carag, Eugenio Villanueva, Jr. and Leo A. Panuncialman), the petition represented the unanimous consensus of 53 Bar Associations (from all over the Philippines) reached in convention at the Far Eastern University Auditorium in Manila on June 23, 1962. 3 Written oppositions were submitted by Attys. Cesar Fajardo and Vicente L. Arcega, the Camarines Norte Lawyers League, Atty. Fructuoso S. Villarin, the Camarines Sur Bar Association and the Manila Bar Association. 4 The Petitioners and the Negros Occidental Bar Association submitted memoranda in favor of Bar integration, while the Manila Bar Association submitted a memoranda opposing Bar integration. 5 All figures are as of January 8, 1973. 5. G.R. No. 132601 January 19, 1999 LEO ECHEGARAY, petitioner, vs. SECRETARY OF JUSTICE, ET AL., respondents. RESOLUTION

PUNO, J.: For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

1. The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority; 2. The issuance of the temporary restraining order . . . creates dangerous precedent as there will never be an end to litigation because there is always a possibility that Congress may repeal a law. 3. Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon . . . 4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, . . . the Honorable Court in issuing the TRO has transcended its power of judicial review. 5. At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit: a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. b. The resolution of Congressman Golez, et al., that they are against the repeal of the law; c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel. In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representative to reject any move to review Republic Act No. 7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter, and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Resolution was concurred in by one hundred thirteen (113) congressman. In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it. Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case,

G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General. We shall now resolve the basic issues raised by the public respondents. I First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to end as there should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz: ENTRY OF JUDGMENT This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows: WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision. SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is hereby recorded in the Book of Entries of Judgment. Manila, Philippine. C l e r k o f C o u r t B y : ( S G D ) T E R E S I T A G . D I M A I S

I P A c t i n g C h i e f J u d i c i a l R e c o r d s O f f i c e The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has caused the publication of the said Amended Rules and Regulations as required by the Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations to Implement

R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as follows: 2 xxx xxx xxx the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has become final the court retains its jurisdiction to execute and enforce it. 3 There is a difference between the jurisdiction of the
court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement of judgment; the latter terminates when the judgment 4 becomes final. . . . For after the judgment has become final facts and circumstances may transpire which can render the execution unjust or 5 impossible.

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of Prisons v. Judge of First Instance, 6 viz: This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same cannot change or alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this

postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible that assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the (court) has performed its ministerial duty of ordering the execution . . . and its part is ended, if however a circumstance arises that ought to delay the execution, and there is an imperative duty to investigate the emergency and to order a postponement. Then the question arises as to whom the application for postponing the execution ought to be addressed while the circumstances is under investigation and so to who has jurisdiction to make the investigation. The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonable time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.
1w phi 1.nt

The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and

integrity, courts will lose that popular trust so essential to the maintenance of their vigor as champions of justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides: Sec.13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan 10 Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these department would be a clear usurpation of its function, as is the case with the law in question." 12 The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided: xxx xxx xxx Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar. 13 The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides: xxx xxx xxx Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional

rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial. To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state: xxx xxx xxx 5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed.

7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall, be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may

be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987]. The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. II Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads: Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. The text and tone of this provision will not yield to the interpretation suggested by the public respondents. The provision is simply the source of power of the President to grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also provides the authority for the President to grant amnesty with the concurrence of a majority of all the members of the Congress. The provision, however, cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. In truth, an accused who has been convicted by final judgment still possesses collateral rights and these rights can be claimed in the appropriate courts. For instance, a death convict who become insane after his final conviction cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally

assumed that due process of law will prevent the government from executing the death sentence upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effects is the same the temporary suspension of the execution of the death convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to amend laws be considered as a violation of the power of the President to commute final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death convict do not exclude each other for the simple reason that there is no higher right than the right to life. Indeed, in various States in the United States, laws have even been enacted expressly granting courts the power to suspend execution of convicts and their constitutionality has been upheld over arguments that they infringe upon the power of the President to grant reprieves. For the public respondents therefore to contend that only the Executive can protect the right to life of an accused after his final conviction is to violate the principle of co-equal and coordinate powers of the three branches of our government. III Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law. When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's

minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens. The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows: xxx xxx xxx a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes. b. The resolution of Congressman Golez, et al., that they are against the repeal of the law; c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel. 18 In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659 which provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended up 3 o'clock in the morning, the House of Representative with minor, the House of Representative with minor amendments formally adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these developments, the Court's TRO should now be lifted as it has served its legal and humanitarian purpose. A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital punishment had been the subject of endless discussion and will probably never be settled

so long as men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of Rights to declare certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who is momentarily the most hated by society. 21 IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999. The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and Pardo, JJ., concur. Vitug and Panganiban, JJ., Please see Separate Opinion. Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions

VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of my brethren on the Court, who hold similarly, have consistently expressed this stand in the affirmance by the Court of death sentences imposed by Regional Trial Courts. In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a temporary restraining order ("TRO") because, among other things, of what had been stated to be indications that Congress would re-examine the death penalty law. It was principally out of respect and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly minded, that motivated the Court to grant, after deliberation, a limited time for the purpose. The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment convicting the accused or recall the imposition of the death penalty. The doctrine has almost invariably been that after a decision becomes final and executory, nothing else is further done except to see to its compliance since for the Court to adopt otherwise would be to put no end to litigations The rule notwithstanding, the Court retains control over the case until the full satisfaction of the final judgment conformably with established legal processes. Hence, the Court has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend the execution of a final judgment when it becomes imperative in the higher interest of justice or when supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs. Judge of First Instance of Cavite, 2 should be instructive. Thus This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or after its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a

hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement . . .. In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender. The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999, "coeval with the duration of the present regular session of Congress," if it "sooner becomes certain that no repeal or modification of the law is going to be made." The "Urgent Motion for Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain circumstances/supervening events (have) transpired to the effect that the repeal or modification of the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the majority of the Justices on the Court feel rightly bound even now to lift the TRO. I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for the need to have a second look at the conditions sine qua non prescribed by the Constitution in the imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to consider a prompt re-examination of the death penalty law, I have said: The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself has set forth; viz: (1) That there must be compelling reasons to justify the

imposition of the death penalty; and (2) That the capital offense must involve a heinous crime. It appears that the fundamental law did not contemplate a simple 'reimposition' of the death penalty to offenses theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term 'compelling reasons' would indicate to me that there must first be a marked change in the milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand, to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand, that would make it distinctively inexorable to allow the re-imposition of the death penalty. Most importantly, the circumstances that would characterize the 'heinous nature' of the crime and make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity in the law, albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime would become 'heinous' within the Constitutional concept, when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating death or, in the crime of rape, when the offended party is callously humiliated or even brutally killed by the accused. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society. Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto. Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion; I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to explain my vote in the context of the larger issue of the death penalty. Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during its current session which ends on June 15, 1999 and that, in any event, the President will veto any such repeal or amendment, the TRO should by its own terms be

deemed lifted now. However, my objections to the imposition of the death penalty transcend the TRO and permeate its juridical essence. I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and "compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of my Dissent promulgated on February 7, 1997. Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in which RA 7659 ( the Death Penalty Law) is to implemented. Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority vote, be implemented by means of lethal injection. FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration. G.R. No. 117472 February 7, 1997 PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO. Supplemental Motion for Reconsideration SEPARATE OPINION Death Penalty Law Unconstitutional In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newlyretained counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for Reconsideration filed by his previous counsel, 3 this transcendental issue was nor brought up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4 The Constitution Abolished Death Penalty Sec. 19, Article III of the 1987 Constitution provides: Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving heinous crimes, the

Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied) The second and third sentences of the above provision are new and had not been written in the 1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced "any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to the lesser penalty of imprisonment). This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the imposition of the death penalty, but in fact completely abolished it from the statute books. The automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the constitutional abolition of the death penalty." Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the provision regarding the non-imposition of the death penalty, what he had in mind was the total abolition and removal from the statute books of the death penalty. This became the intent of the frames of the Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality. The Constitution Strictly Limits Congressional Prerogative to Prescribe Death To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then existing statutes but (2) authorized Congress to restore it at some future time to enable or empower courts to reimpose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to "provide for it" is not absolute. Rather, it is strictly limited: 1. by "compelling reasons" that may arise after the Constitution became effective; and 2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of "compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress, by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on individual offenders found guilty beyond reasonable doubt of committing said crimes. In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14 But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the preamble, which was cast in general terms) discuss or justify the reasons for the more sever sanction, either collectively for all the offenses or individually for each of them. Generally, it merely reinstated the concept of and the method by which the death penalty had been imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is convicted of a capital offense; and (2) the commission of which was accompanied by aggravating circumstances not outweighed by mitigating circumstances. The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer, I respectfully submit, is YES. Heinous Crimes To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress. As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death as an applicable penalty. It did not give a standard or a characterization by which courts may be able to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its constitutionally limited power. In deference thereto, it included a paragraph in the preambular or "whereas" clauses of RA 7659, as follows: WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. In my humble view, however, the foregoing clause is clearly an insufficient definition or characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be "heinous" without adequately justifying its bases therefor. It supplies no useful,

workable, clear and unambiguous standard by which the presence of heinousness can be determined. Calling the crimes "grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm it with thorns. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the Constitution. As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum imposable penalty once the court appreciates the presence or absence of aggravating circumstances. 16 In other words, it just reinstated capital punishment for crimes which were already punishable with death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under said law were already to punishable by the Revised Penal Code 18 and by special laws. During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19 So we did not go that far from the Revised Penal Code, Mr. President, and from existing special laws which, before abolition of the death penalty, had already death as the maximum penalty. By merely reimposing capital punishment on the very same crimes which were already penalized with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal laws and 2) make its restoration possible only under and subject to stringent conditions is evident not only from the language of the Constitution but also from the charter debates on this matter. The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available information shows that, when deliberating on "heinousness", the Constitutional Commission did not have in mind the offenses already existing and already penalized with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent quality, degree or level of perversity, depravity or viciousness unheard of until then; or 2. even existing crimes, provided some new element or essential ingredient like "organized" or "brutal" is added to show their utter perversity, odiousness or malevolence; or 3. the means or method by which the crime, whether new or old, is carried out evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to demonstrate its heinousness. 21 For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as "heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to murder for which a heavier penalty is prescribed. Compelling Reasons Quite apart from requiring the attendant element of heinousness, the Constitution also directs Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot be done wholesale but must shown for each and every crime, individually and separately. The words "compelling reasons" were included in the Charter because, in the words of Comm. Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that the conditions and the situation (during the deliberations of the Constitutional Commission) might change for very specific reasons" requiring the return of the constitutionally-abhorred penalty. In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons: 23 MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . . MR. GARCIA (P.). The worsening peace and order condition in the country, Mr. Speaker. That is one. MR. LAGMAN. So the compelling reason which the distinguished sponsor would like to justify or serve as an anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and order situation. The Gentleman claims that is one the compelling reasons. But before we dissent this particular "compelling reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker. MR. LAGMAN. Justice. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman kindly elaborate on that answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution abolished the death penalty? Any compelling reason should be a supervening circumstances after 1987. MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one lives in an organized society governed by law, justice demands that crime be punished and that the penalty imposed be commensurate with the offense committed. MR. LAGMAN. The Gentleman would agree with me that when the Constitution speaks of the compelling reasons to justify the reimposition of death penalty, it refers to reasons which would supervene or come after the approval of the 1987 Constitution. Is he submitting that justice, in his own concept of a commensurate penalty for the offense committed, was not obtained in 1987 when the Constitution abolished the death penalty and the people ratified it? MR. GARCIA (P.). That is precisely why we are saying that now, under present conditions, because of the seriousness of the offenses being committed at this time, justice demands that the appropriate penalty must be meted out for those who have committed heinous crimes. xxx xxx xxx In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order" and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent. Statistics from the Philippine National Police show that the crime volume and crime rate particularly on those legislated capital offenses did not worsen but in fact declined between 1987, the date when the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following debate 24 also between Representatives Garcia and Lagman: MR. LAGMAN. Very good, Mr. Speaker. Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of the crime of murder in 1987? MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman inform us the volume of murder in 1988? MR. GARCIA (P.). It was 10,521, Mr. Speaker. MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988. Correspondingly, the crime rate in the very year after the abolition of the death penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker? MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by the PC. MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the death penalty? May we know from the distinguished Gentleman the volume of robbery in 1987? MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it. MR. LAGMAN. No, Mr. Speaker, I am asking the question. MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent. MR. LAGMAN. This was the year immediately after the abolition of the death penalty. Could the Gentleman tell us the volume of robbery cases in 1988? MR. GARCIA (P.). It was 16,926, Mr. Speaker. MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). This is what the statistics say, I understand we are reading now from the same document. MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document and I would not want to say that the Gentleman is misreading the document that I have here. MR. LAGMAN. But would the Gentleman confirm that? MR. GARCIA (P.). The document speaks for itself. When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25 Let me cite this concrete statistics by the Dangerous Drug Board. In 1987 this was the year when the death penalty was abolished the persons arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988. By the way, I will furnish my Colleagues with a photocopy of this report. From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991. But in 1987, when the death penalty was abolished, as far as the drugrelated cases are concerned, the figure continued a downward trend, and there was no death penalty in this time from, 1988 to 1991. In a further attempt to show compelling reasons, the proponents of the death penalty argue that its reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness the relationship between the prescription of the death penalty for certain offenses and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in the same manner that another proposition that the real deterrent to crime is the certainty of immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs or his witnesses can be argued indefinitely. 28 This debate can last till the academics grow weary of the spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling reasons" limits of its deathprescribing power. Other Constitutional Rights Militate Against RA 7659 It should be emphasized that the constitutional ban against the death penalty is included in our Bill of Rights. As such, it should like any other guarantee in favor of the accused

be zealously protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just crimes but capital crimes! So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that "(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary right of the people to enjoy life life at its fullest, life in dignity and honor is not only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and prohuman rights provisions. Hence, the Constitution values the dignity of every human person and guarantees full respect for human rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death, emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the moment of conception 34 and establishes the people's rights to health, a balanced ecology and education. 35 This Constitutional explosion of concern for man more than property for people more than the state, and for life more than mere existence augurs well for the strict application of the constitutional limits against the revival of death penalty as the final and irreversible exaction of society against its perceived enemies. Indeed, volumes have been written about individual rights to free speech. assembly and even religion. But the most basic and most important of these rights is the right to life. Without life, the other rights cease in their enjoyment, utility and expression. This opinion would not be complete without a word on the wrenching fact that the death penalty militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons have been sentenced to death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the number rose to 90; an average of seven (7) convicts per month; double the monthly average of capital sentences imposed the prior year. From January to June 1996, the number of death penalty convicts reached 72, an average of 12 convicts per month, almost double the monthly average of capital sentences imposed in 1995.
37

2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%), those earning P15,000 and above only one percent (1%). Approximately thirteen percent (13%) earn nothing at all, while approximately two percent (2%) earn subsistence wages with another five percent (5%) earning variable income. Approximately nine percent (9%) do not know how much they earn in a month. 3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the government-mandated minimum monthly wage of

P4,290; ten (10) of these earn below the official poverty line set by government. Twenty six (26) earn between P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of their monthly income. Twenty two (22) convicts earn nothing at all. 4. In terms of occupation, approximately twenty one percent (21%) are agricultural workers or workers in animal husbandry; of these thirty (30), or almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the transport and construction industry, with thirty one (31) construction workers or workers in allied fields (carpentry, painting, welding) while twenty seven (27) are transport workers (delivery, dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in clerical, sales and service industries, with fourteen (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve (12) service workers (butchers, beauticians, security guards, shoemakers, tour guides, computer programmers, radio technicians) and four (4) clerks (janitors, MERALCO employee and clerk) About four percent (4%) are government workers, with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU). Professionals, administrative employee and executives comprise only three percent (3%), nine percent (9%) are unemployed. 5. None of the DRC's use English as their medium of communication. About forty four percent (44%), or slightly less than half speak and understand Tagalog; twenty six percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national and speaks and understand Niponggo. 6. Approximately twelve percent (12%) graduated from college, about forty seven percent (47%) finished varying levels of elementary education with twenty seven (27) graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts, finished varying levels of high school, with more than half of them graduating from high school. Two (2) convicts finished vocational education; nine (9) convicts did not study at all. The foregoing profile based on age, language and socio-economic situations sufficiently demonstrates that RA 7659 has militated against the poor and the powerless in society those who cannot afford the legal services necessary in capital crimes, where extensive preparation, investigation, research and presentation are required. The best example to shoe the sad plight of the underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in the proceedings in the trial court and even before this Court until the Free legal Assistance Group belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange, incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating and damning. The net effect of having a death penalty that is imposed more often than not upon the impecunious is to engender in the minds of the latter, a sense unfounded, to be sure, but unhealthy nevertheless of the unequal balance of the scales of justice. Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-economic profile of the DRCs, the law reviving capital punishment does not in any way single out or discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as the disadvantaged are concerned, the law would still be complex and written in a strange and incomprehensible language, and judicial proceedings complicated and intimidating, whether the ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that, whatever the penalties set by law, it seems to me that there will always be certain class or classes of people in our society who, by reason of their poverty, lack of educational attainment and employment opportunities, are consequently confined to living, working and subsisting in less-than-ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and crime. So from that perspective, the law reviving the death penalty neither improves nor worsens their lot substantially. Or, to be more precise, such law may even be said to help improve their situation (at least in theory) by posing a much stronger deterrent to the commission of heinous crimes. However, such a viewpoint simply ignores the very basic differences that exist in the situations of the poor and the non-poor. Precisely because the underprivileged are what they are, they require and deserve a greater degree of protection and assistance from our laws and Constitution, and from the courts and the State, so that in spite of themselves, they can be empowered to rise above themselves and their situation. The basic postulates for such a position are, I think, simply that everyone ultimately wants to better himself and that we cannot better ourselves individually to any significant degree if we are unable to advance as an entire people and nation. All the pro-poor provisions of the Constitution point in this direction. Yet we are faced with this law that effectively inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and constitutional firmament. Epilogue In sum, I respectfully submit that: (1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit its imposition. (2) The Charter effectively granted a new right: the constitution right against the death penalty, which is really a species of the right to life.

(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused because such a stature denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. (4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. (5) Congressional power death is severely limited by two concurrent requirements: a. First, Congress must provide a set of attendant circumstances which the prosecution must prove beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why and how these circumstances define or characterize the crime as "heinous". b. Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate "for compelling reasons involving heinous crimes." The compelling reason must flow from the heinous nature of the offense. (6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set out for each and every crime, and not just for all crimes generally and collectively. "Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the "sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the vast majority of our people belong, acknowledges the power of public authorities to prescribe the death penalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-existent." Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and above even the state which man created precisely to protect, cherish and defend him. The Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes of "extreme gravity", which are very rare and practically non-existent. In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-defined "heinous" crimes? I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion perpetua. I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the crimes mentioned in its text. Separate Opinions VITUG, J., separate opinion; Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of my brethren on the Court, who hold similarly, have consistently expressed this stand in the affirmance by the Court of death sentences imposed by Regional Trial Courts. In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a temporary restraining order ("TRO") because, among other things, of what had been stated to be indications that Congress would re-examine the death penalty law. It was principally out of respect and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly minded, that motivated the Court to grant, after deliberation, a limited time for the purpose. The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment convicting the accused or recall the imposition of the death penalty. The doctrine has almost invariably been that after a decision becomes final and executory, nothing else is further done except to see to its compliance since for the Court to adopt otherwise would be to put no end to litigations The rule notwithstanding, the Court retains control over the case until the full satisfaction of the final judgment conformably with established legal processes. Hence, the Court has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend the execution of a final judgment when it becomes imperative in the higher interest of justice or when supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs. Judge of First Instance of Cavite, 2 should be instructive. Thus This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or after its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has

been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon. Getting down to the solution of the question in the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King; (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement . . .. In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender. The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999, "coeval with the duration of the present regular session of Congress," if it "sooner becomes certain that no repeal or modification of the law is going to be made." The "Urgent Motion for Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain circumstances/supervening events (have) transpired to the effect that the repeal or modification of the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for the need to have a second look at the conditions sine qua non prescribed by the Constitution in the imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to consider a prompt re-examination of the death penalty law, I have said: The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself has set forth; viz: (1) That there must be compelling reasons to justify the imposition of the death penalty; and (2) That the capital offense must involve a heinous crime. It appears that the fundamental law did not contemplate a simple 'reimposition' of the death penalty to offenses theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term 'compelling reasons' would indicate to me that there must first be a marked change in the milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand, to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand, that would make it distinctively inexorable to allow the re-imposition of the death penalty. Most importantly, the circumstances that would characterize the 'heinous nature' of the crime and make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity in the law, albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime would become 'heinous' within the Constitutional concept, when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating death or, in the crime of rape, when the offended party is callously humiliated or even brutally killed by the accused. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society. Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto. Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion; I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to explain my vote in the context of the larger issue of the death penalty. Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during its current session which ends on June 15, 1999 and that, in any event, the President will veto any such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my objections to the imposition of the death penalty transcend the TRO and permeate its juridical essence. I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and "compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of my Dissent promulgated on February 7, 1997. Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in which RA 7659 ( the Death Penalty Law) is to implemented. Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority vote, be implemented by means of lethal injection. FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration. G.R. No. 117472 February 7, 1997 PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO. Supplemental Motion for Reconsideration SEPARATE OPINION Death Penalty Law Unconstitutional In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newlyretained counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for Reconsideration filed by his previous counsel, 3 this

transcendental issue was nor brought up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4 The Constitution Abolished Death Penalty Sec. 19, Article III of the 1987 Constitution provides: Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied) The second and third sentences of the above provision are new and had not been written in the 1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced "any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to the lesser penalty of imprisonment). This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the imposition of the death penalty, but in fact completely abolished it from the statute books. The automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the constitutional abolition of the death penalty." Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the provision regarding the non-imposition of the death penalty, what he had in mind was the total abolition and removal from the statute books of the death penalty. This became the intent of the frames of the Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality. The Constitution Strictly Limits Congressional Prerogative to Prescribe Death To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then existing statutes but (2) authorized Congress to restore it at some future time to enable or empower courts to reimpose it on condition that it (Congress) 9 finds "compelling

reasons, involving heinous crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to "provide for it" is not absolute. Rather, it is strictly limited: 1. by "compelling reasons" that may arise after the Constitution became effective; and 2. to crimes which Congress should identify or define or characterize as "heinous." The Constitution inexorably placed upon Congress the burden of determining the existence of "compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress, by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on individual offenders found guilty beyond reasonable doubt of committing said crimes. In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14 But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the preamble, which was cast in general terms) discuss or justify the reasons for the more sever sanction, either collectively for all the offenses or individually for each of them. Generally, it merely reinstated the concept of and the method by which the death penalty had been imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is convicted of a capital offense; and (2) the commission of which was accompanied by aggravating circumstances not outweighed by mitigating circumstances. The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer, I respectfully submit, is YES. Heinous Crimes To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress. As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death as an applicable penalty. It did not give a standard or a characterization by which courts may be able to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its constitutionally limited power. In deference thereto, it included a paragraph in the preambular or "whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. In my humble view, however, the foregoing clause is clearly an insufficient definition or characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be "heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and unambiguous standard by which the presence of heinousness can be determined. Calling the crimes "grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm it with thorns. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation, much less prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the Constitution. As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum imposable penalty once the court appreciates the presence or absence of aggravating circumstances. 16 In other words, it just reinstated capital punishment for crimes which were already punishable with death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under said law were already to punishable by the Revised Penal Code 18 and by special laws. During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19 So we did not go that far from the Revised Penal Code, Mr. President, and from existing special laws which, before abolition of the death penalty, had already death as the maximum penalty. By merely reimposing capital punishment on the very same crimes which were already penalized with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal laws and 2) make its restoration possible only under and subject to stringent conditions is evident not only from the language of the Constitution but also from the charter debates on this matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available information shows that, when deliberating on "heinousness", the Constitutional Commission did not have in mind the offenses already existing and already penalized with death. I also believe that the heinousness clause requires that: 1. the crimes should be entirely new offenses, the elements of which have an inherent quality, degree or level of perversity, depravity or viciousness unheard of until then; or 2. even existing crimes, provided some new element or essential ingredient like "organized" or "brutal" is added to show their utter perversity, odiousness or malevolence; or 3) the means or method by which the crime, whether new or old, is carried out evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to demonstrate its heinousness. 21 For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as "heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to murder for which a heavier penalty is prescribed. Compelling Reasons Quite apart from requiring the attendant element of heinousness, the Constitution also directs Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot be done wholesale but must shown for each and every crime, individually and separately. The words "compelling reasons" were included in the Charter because, in the words of Comm. Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that the conditions and the situation (during the deliberations of the Constitutional Commission) might change for very specific reasons" requiring the return of the constitutionally-abhorred penalty. In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons: 23 MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr. Speaker. That is one. MR. LAGMAN. So the compelling reason which the distinguished sponsor would like to justify or serve as an anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and order situation. The Gentleman claims that is one the compelling reasons. But before we dissent this particular "compelling reason," may we know what are the other compelling reasons, Mr. Speaker? MR. GARCIA (P.) Justice, Mr. Speaker. MR. LAGMAN. Justice. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman kindly elaborate on that answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution abolished the death penalty? Any compelling reason should be a supervening circumstances after 1987. MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one lives in an organized society governed by law, justice demands that crime be punished and that the penalty imposed be commensurate with the offense committed. MR. LAGMAN. The Gentleman would agree with me that when the Constitution speaks of the compelling reasons to justify the reimposition of death penalty, it refers to reasons which would supervene or come after the approval of the 1987 Constitution. Is he submitting that justice, in his own concept of a commensurate penalty for the offense committed, was not obtained in 1987 when the Constitution abolished the death penalty and the people ratified it? MR. GARCIA (P.). That is precisely why we are saying that now, under present conditions, because of the seriousness of the offenses being committed at this time, justice demands that the appropriate penalty must be meted out for those who have committed heinous crimes. xxx xxx xxx In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order" and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent. Statistics from the Philippine National Police show that the crime volume and crime rate particularly on those legislated capital offenses did not worsen but in fact declined between 1987, the date when the Constitution took effect, and

1993, the year when RA 7659 was enacted. Witness the following debate Representatives Garcia and Lagman: MR. LAGMAN. Very good, Mr. Speaker.

24

also between

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of the crime of murder in 1987? MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305. MR. LAGMAN. So, the corresponding crime rate was 21 percent. MR. GARCIA (P.). Yes, Mr. Speaker. MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman inform us the volume of murder in 1988? MR. GARCIA (P.). It was 10,521, Mr. Speaker. MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988. Correspondingly, the crime rate in the very year after the abolition of the death penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker? MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by the PC. MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the death penalty? May we know from the distinguished Gentleman the volume of robbery in 1987? MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it. MR. LAGMAN. No, Mr. Speaker, I am asking the question. MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent. MR. LAGMAN. This was the year immediately after the abolition of the death penalty. Could the Gentleman tell us the volume of robbery cases in 1988? MR. GARCIA (P.). It was 16,926, Mr. Speaker. MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the volume of robbery cases declined from 22,942 in

1987 or crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). This is what the statistics say, I understand we are reading now from the same document. MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would the Gentleman confirm that, Mr. Speaker? MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document and I would not want to say that the Gentleman is misreading the document that I have here. MR. LAGMAN. But would the Gentleman confirm that? MR. GARCIA (P.). The document speaks for itself. When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25 Let me cite this concrete statistics by the Dangerous Drug Board. In 1987 this was the year when the death penalty was abolished the persons arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988. By the way, I will furnish my Colleagues with a photocopy of this report. From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991. But in 1987, when the death penalty was abolished, as far as the drugrelated cases are concerned, the figure continued a downward trend, and there was no death penalty in this time from, 1988 to 1991. In a further attempt to show compelling reasons, the proponents of the death penalty argue that its reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness the relationship between the prescription of the death penalty for certain offenses and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in the same manner that another proposition that the real deterrent to crime is the certainty of immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs or his

witnesses can be argued indefinitely. 28 This debate can last till the academics grow weary of the spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling reasons" limits of its deathprescribing power. Other Constitutional Rights Militate Against RA 7659 It should be emphasized that the constitutional ban against the death penalty is included in our Bill of Rights. As such, it should like any other guarantee in favor of the accused be zealously protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just crimes but capital crimes! So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that "(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary right of the people to enjoy life life at its fullest, life in dignity and honor is not only reiterated by the 1987 Charter but is in fact fortified by its other pro-life and prohuman rights provisions. Hence, the Constitution values the dignity of every human person and guarantees full respect for human rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death, emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the moment of conception 34 and establishes the people's rights to health, a balanced ecology and education. 35 This Constitutional explosion of concern for man more than property for people more than the state, and for life more than mere existence augurs well for the strict application of the constitutional limits against the revival of death penalty as the final and irreversible exaction of society against its perceived enemies. Indeed, volumes have been written about individual rights to free speech. assembly and even religion. But the most basic and most important of these rights is the right to life. Without life, the other rights cease in their enjoyment, utility and expression. This opinion would not be complete without a word on the wrenching fact that the death penalty militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons have been sentenced to death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the number rose to 90; an average of seven (7) convicts per month; double the monthly average of capital sentences imposed the prior year. From January to June 1996, the number of death penalty convicts reached 72, an average of 12 convicts per month, almost double the monthly average of capital sentences imposed in 1995.
37

2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn between P3,000 to P3,999 monthly. Those

3.

4.

5.

6.

earning above P4,000 monthly are exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%), those earning P15,000 and above only one percent (1%). Approximately thirteen percent (13%) earn nothing at all, while approximately two percent (2%) earn subsistence wages with another five percent (5%) earning variable income. Approximately nine percent (9%) do not know how much they earn in a month. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the government-mandated minimum monthly wage of P4,290; ten (10) of these earn below the official poverty line set by government. Twenty six (26) earn between P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of their monthly income. Twenty two (22) convicts earn nothing at all. In terms of occupation, approximately twenty one percent (21%) are agricultural workers or workers in animal husbandry; of these thirty (30), or almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the transport and construction industry, with thirty one (31) construction workers or workers in allied fields (carpentry, painting, welding) while twenty seven (27) are transport workers (delivery, dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in clerical, sales and service industries, with fourteen (14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve (12) service workers (butchers, beauticians, security guards, shoemakers, tour guides, computer programmers, radio technicians) and four (4) clerks (janitors, MERALCO employee and clerk) About four percent (4%) are government workers, with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU). Professionals, administrative employee and executives comprise only three percent (3%), nine percent (9%) are unemployed. None of the DRC's use English as their medium of communication. About forty four percent (44%), or slightly less than half speak and understand Tagalog; twenty six percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national and speaks and understand Niponggo. Approximately twelve percent (12%) graduated from college, about forty seven percent (47%) finished varying levels of elementary education with twenty seven (27) graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts, finished varying levels of high school, with more than half of them graduating from high school. Two (2) convicts finished vocational education; nine (9) convicts did not study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently demonstrates that RA 7659 has militated against the poor and the powerless in society those who cannot afford the legal services necessary in capital crimes, where extensive preparation, investigation, research and presentation are required. The best example to shoe the sad plight of the underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in the proceedings in the trial court and even before this Court until the Free legal Assistance Group belatedly brought it up in the Supplemental Motion for Reconsideration. To the poor and unlettered, it is bad enough that the law is complex and written in a strange, incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating and damning. The net effect of having a death penalty that is imposed more often than not upon the impecunious is to engender in the minds of the latter, a sense unfounded, to be sure, but unhealthy nevertheless of the unequal balance of the scales of justice. Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-economic profile of the DRCs, the law reviving capital punishment does not in any way single out or discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as the disadvantaged are concerned, the law would still be complex and written in a strange and incomprehensible language, and judicial proceedings complicated and intimidating, whether the ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that, whatever the penalties set by law, it seems to me that there will always be certain class or classes of people in our society who, by reason of their poverty, lack of educational attainment and employment opportunities, are consequently confined to living, working and subsisting in less-than-ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and crime. So from that perspective, the law reviving the death penalty neither improves nor worsens their lot substantially. Or, to be more precise, such law may even be said to help improve their situation (at least in theory) by posing a much stronger deterrent to the commission of heinous crimes. However, such a viewpoint simply ignores the very basic differences that exist in the situations of the poor and the non-poor. Precisely because the underprivileged are what they are, they require and deserve a greater degree of protection and assistance from our laws and Constitution, and from the courts and the State, so that in spite of themselves, they can be empowered to rise above themselves and their situation. The basic postulates for such a position are, I think, simply that everyone ultimately wants to better himself and that we cannot better ourselves individually to any significant degree if we are unable to advance as an entire people and nation. All the pro-poor provisions of the Constitution point in this direction. Yet we are faced with this law that effectively inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and constitutional firmament.

Epilogue In sum, I respectfully submit that: 1. The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit its imposition. 2. The Charter effectively granted a new right: the constitution right against the death penalty, which is really a species of the right to life. 3. Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused because such a stature denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. 4. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. 5. Congressional power death is severely limited by two concurrent requirements: a. First, Congress must provide a set of attendant circumstances which the prosecution must prove beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why and how these circumstances define or characterize the crime as "heinous". Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate "for compelling reasons involving heinous crimes." The compelling reason must flow from the heinous nature of the offense. 1. In every law reviving the capital penalty, the heinousness and compelling reasons must be set out for each and every crime, and not just for all crimes generally and collectively. "Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the "sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the vast majority of our people belong, acknowledges the power of public authorities to prescribe the death penalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-existent." Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and above even the state which man created precisely to protect, cherish and defend him. The Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous crimes" just as the Church grudgingly permits it only reasons of

"absolute necessity" involving crimes of "extreme gravity", which are very rare and practically non-existent. In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-defined "heinous" crimes? I respectfully submit it has not. WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion perpetua. I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the crimes mentioned in its text. Footnotes 1 Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 [1938]. 2 Philippine Courts and their Jurisdiction, p. 13, 1998 ed. 3 Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426; Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland Cement Corp. v. Laquihan, 120 SCRA 930. 4 Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63 O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and Development Corp. v. Encaje, 104 SCRA 388. 5 Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v. McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v. Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67 Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174. 6 29 Phil. 267 (1915), p. 270. 7 Sec. 1, Article VIII of the 1987 Constitution. 8 Sec. 5(f), Rule 135.

9 Philippine Political Law, p. 225, 1993 ed. 10 94 Phil. 534 (1954), pp. 550-555. 11 R.A. No. 372. 12 94 Phil. 550, p. 551. 13 See In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22. 14 See pp. 3-4 of Urgent Motion for Reconsideration. 15 See Art. 79 of the Revised Penal Code. 16 Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v. California, 357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958]. 17 December 30 and 31, 1998 were declared holidays. January 1, 1999 was an official holiday. January 2 was a Saturday and January 3 was a Sunday. 18 Urgent Motion for Reconsideration of Public respondents, p. 8. 19 Darrow, Crime: Its Cause and Treatment, p. 166 (1922). 20 Eisler, A Justice For All, p. 268. 21 "Where personal liberty is involved, a democratic society employs a different arithmetic and insists that it is less important to reach an unshakable decision than to do justice." Pollack, Proposals to Curtail Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ. 66 Yale LJ 50, 65 (1956). VITUG, J., separate opinion; 1 Candelana vs. Caizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate Appellate Court, 178 SCRA 545, Lipana vs. Development Bank of Rizal, 154 SCRA 257; Lee vs. De Guzman, 187 SCRA 276, Bachrach Corporation vs. Court of Appeals, G.R. No. 128349, 25 September 1998. 2 29 Phil 267. 3 At least for Mr. Echegaray. 4 G.R. No 124329, 14 December 1998.

PANGANIBAN, J., separate opinion; * I have further explained my unflinching position on this matter in my recent book Battles in the Supreme Court, particularly on page 58 to 84. Separate opinion; 1 It is called "Supplemental" because there was a (main) Motion for Reconsideration filed by the previous counsel of the accused, which this Court already denied. 2 The Anti Death Penalty Task Force of the Free Legal Assistance Group Pablito V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo R. Abaya and Ma. Victoria I. Diokno filed its Notice of Appearance dated August 22, 1996 only on August 23, 1996, after the Per Curiam Decision of this Court was promulgated on June 25, 1996. 3 Atty. Julian R. Vitug, Jr. 4 The bulk of jurisprudence precludes raising an issue for the first time only on appeal. See, for instance, Manila Bay Club Corporation vs. Court of Appeals, 249 SCRA 303, October 13, 1995; Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, July 11, 1995; Securities and Exchange Commission vs. Court of Appeals, 246 SCRA 738, July 21, 1995. However, the Court resolved to tackle the question of constitutionality of Republic Act No. 7659 in this case, anticipating that the same question would be raised anyway in many other subsequent instances. The Court resolved to determine and dispose of the issue once and for all, at the first opportunity. To let the issue pass unresolved just because it was raised after the promulgation of the decision affirming conviction may result in grave injustice. 5 In People vs. Muoz, 170 SCRA 107, February 9, 1989, the Court, prior to the enactment and effectivity of RA 7659, ruled by a vote of 96 (J. Cruz, ponente, C.J. Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino and Medialdea, concurring) that the death penalty was not abolished but only prohibited from imposed. But see also the persuasive Dissenting Opinion of Mme. Justice Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and Regalado) who contended that the Constitution totally abolished the death penalty and removed it form the statute books. People vs. Muoz reversed the earlier "abolition" doctrine uniformly held in People vs. Gavarra, 155 SCRA 327, October 30, 1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per J. Melencio-Herrera) and People vs. Atencio, 156

SCRA 242, December 10, 1987 (per C.J. Narvasa). It is time that these cases are revisited by this Court. 6 This quote is taken from I Record of the Constitutional Commission, p. 676 (July 17, 1986) as follows: Fr. Bernas: xxx xxx xxx My recollection on this is that there was a division in the Committee not on whether the death penalty should be abolished or not, but rather on whether the abolition should be done by the Constitution in which case it cannot be restored by the legislature or left to the legislature. The majority voted for the constitutional abolition of the death penalty. And the reason is that capital punishment is inhuman for the convict and his family who are traumatized by the waiting, even if it is never carried out. There is no evidence that death penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that other lives might be saved. Assuming mastery over the life of another man is just too presumptuous for any man. The fact that the death penalty as an institution has been there from time immemorial should not deter us from reviewing it. Human life is more valuable than an institution intended precisely to serve human life. So basically, this is the summary of the reason which were presented in support of the constitutional abolition of the death penalty (emphasis supplied) 7 Dissenting Opinion in People vs. Muoz, supra, p. 129. 8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a statute which allows an exception to a constitutional right (against warrantless arrests) should be strictly construed. 9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus curiae in People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996), vigorously argues that RA 7659 has validly restored the death penalty which may now be imposed provided that the prosecution proves, and the court is convinced, that (a) the accused is guilty of a crime designated by RA 7659 as capital, (b) whose commission is accompanied by aggravating circumstances as defined by Arts. 14 and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance must be one which can be characterized by the court as making the crime "heinous", and (d) that the execution of the offender is demanded by "compelling reasons" related to the offense. In other words, according to him, it is the courts not Congress that have responsibility of determining the heinousness of a crime and the compelling reason for its imposition upon a particular

offender, depending on the facts of each case. I cannot however subscribe to this view. The Constitution clearly identifies Congress as the sovereign entity which is given the onus of fulfilling these two constitutional limitations. 10 People vs. Muoz, supra, p. 121. 11 Which became effective on December 31, 1993, per People vs. Burgos, 234 SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6, 1995; People vs. Albert, 251 SCRA 136, December 11, 1995. 12 Art. 114 Treason; Art. 123 Qualified Piracy; Art. 246 Parricide; Art. 248 Murder; Art. 255 Infanticide; Art. 267 Kidnapping and Serious Illegal Detention; Art. 294 Robbery with violence against or intimidation of persons; Art. 320 Destructive Arson; Art. 335 Rape. 13 Art. 221-A on Qualified Bribery. 14 Sec. 2, RA 7080 Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of RA 6425 Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425 Carnapping. 15 A preamble is not an essential part of a statute. (Agpalo, Statutory Construction, Second Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). The function of the preamble is to supply reasons and explanation and not to confer power or determine rights. Hence it cannot be given the effect of enlarging the scope or effect of a statute. (C. Dallas Sands, Statutes and Statutory Construction, Fourth Edition, Volume LA, 20.03). 16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for rape, regardless of the presence or absence of aggravating or mitigating circumstances, "(w)hen by reason or on the occasion of the rape, a homicide is committed," or when it is "committed with any of the attendant circumstances enumerated" in said section. 17 While in plunder and qualified bribery are "new" capital offenses, RA 7659 nonetheless fails to justify why they are considered heinous. In addition, the specific compelling reasons for the prescribed penalty of death are note laid out by the statute. 18 In the case of rape, RA 7659 provided certain attendant circumstances which the prosecution must prove before courts can impose the extreme penalty. Just the same however, the law did not

explain why said circumstances would make the crimes heinous. Neither did it set forth the complelling reasons therefor. 19 Record of the Senate, First Regular Session, January 18 to March 11, 1993, Volume III, No. 48, January 25, 1993, p. 122. 20 I Record of the Constitutional Commission, July 18, 1986, pp. 742743: MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes', whatever is the pronunciation. Will the Gentleman give examples of 'heinous crimes'? For example, would the head of an organized syndicate in dope distribution or dope smuggling fall within the qualification of a heinous offender such as to preclude the application of the principle of abolition of death penalty? MR. MONSOD Yes, Madam President. That is one of the possible crimes that would qualify for a heinous crime. Another would be organized murder. In other words, yesterday there were many arguments for and against, and they all had merit. But in the contemporary society, we recognize the sacredness of human life and I think it was Honorable Laurel who said this yesterday it is only God who gives and takes life. However, the voice of the people is also the voice of God, and we cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that circumstances may arise which we should not preclude today. We know that this is very difficult question. The fact that the arguments yesterday were quite impassioned and meritorious merely tell us that this is far from a well-settled issue. At least in my personal opinion, we would like the death penalty to be abolished. However, in the future we should allow the National Assembly in its wisdom and as representatives of the people, to still impose the death penalty for the common good, in specific cases. MR. SUAREZ. Thank you. I would like to pursue some more the Gentleman's definition of 'heinous crimes'. Would the brutal murder of a rape victim be considered as falling within that classification? MR. MONSOD. Madam President, yes, particularly, if it is a person in authority. He would, therefore, add as an aggravating circumstance to the crime the abuse of this position authority. MR. SUAREZ. Thank you.

21 Some examples of this may be taken by Congress from Richmond vs. Lewis, 506 US 40, like "gratuitous violence" or "needless mutilation" of the victim. 22 Paragraph 3 & 4 of the preamble reads: WHEREAS, due to the alarming upsurge of such crimes which has resulted not only in the loss of human lives and wanton destruction of property but has also affected the nation's efforts towards sustainable economic development and prosperity while at the same time has undermined the people's faith in the Government and the latter's ability to maintain peace and order in the country. WHEREAS, the Congress, in the interest of justice, public order and the rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes; 23 Record of the House of Representatives, First Regular Session, 1992-1993, Volume IV, February 10, 1993, p. 674, emphasis supplied. 24 Record of the House of Representatives, First Regular Session, 1992-1993, Vol. III, November 10, 1992, p. 448; emphasis supplied. 25 Record of the Senate, First Regular Session, January 18 to March 11, 1993, Volume III, No. 50, January 27, 1993, pp. 176-177. 26 See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the House of Representatives, November 9, 1992, pp. 40-42. 27 Witness, for instance, this interesting exchange between Commissioners Joaquin Bernas and Napoleon Rama (I Record of the Constitutional Commission, p. 678): FR. BERNAS. When some experts appeared before us and we asked them if there was evidence to show that the death penalty had deterred the commission of deadly crimes, none of them was able to say that there was evidence, conclusive evidence, for that. MR. RAMA. I am curious. Who are experts then social scientist or penologists or what? FR. BERNAS. Penologists. MR. RAMA. Of course we are aware that there is also another school of thought here, another set of experts, who would swear that the death penalty discourages crimes or criminality. Of course.

Commissioner Bernas knows that never in our history has there been a higher incidence of crime. I say that criminality was at its zenith during the last decade. FR. BERNAS. Correct, in spite of the existence of the death penalty. MR. RAMA. Yes, but not necessarily in spite of the existence of the death penalty. At any rate, does the sponsor think that in removing the death penalty, it would not affect, one way or another, the crime rate of the country? FR. BERNAS. The position taken by the majority of those who voted in favor of this provision is that means other than the death penalty should be used for the prevention of crime. 28 Cf. Report to the United Nations Committee on Crime Prosecution and Control, United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch, Vienna, 1988, p. 110. 29 Former Chief Justice Enriquez M. Freehand, in his book, The Bill of Rights, (Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a bill of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly safeguarded. . . ." In the context of the role of a bill of right the vast powers of government are clearly to be exercise within the limits set by the constitution, particularly the bill of rights. In Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-24693, July 31, 1967), it was held that the exercise of police power, insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. The guarantee in Sec. 1 of Article III of the Constitution embraces life, liberty and property. In the words of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2 [1956]), ". . . individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be denied upon mere general principle and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. . . ." These guarantees are preserved in the 1987 Constitution, according to Fr. Bernas. 30 See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995, and People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995.

31 Art. III, Sec. 1. 32 Art. III, Sec. 11. 33 Art. II, Sec. 12 (2). 34 Art. II, Sec. 12. 35 Art. II, Secs. 15, 16 & 17. 36 For details, see Annex A of the Memorandum for the AccusedAppellant dated September 26, 1996 filed by the Free Legal Assistance Group in People vs. Malabago, G.R. No. 115686, December 2, 1996. 37 The FLAG-submitted Profile states that have been sentenced to death by trial courts since the effectivity of RA 7659. The Philippine Star issue of December 9, 1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total number of death row inmates has gone up to 267, as of November, 1996, of whom, more than one half (139) are rape convicts. Some major dailies (Philippine Daily Inquirer, Philippine Star, Manila Standard) in their February 3, 1997 issue up the death row figure to 300, as of the end of January 1997, with 450 as the probable number at the end of 1997. 38 The preamble of the Constitution is theistic. It declares the "sovereign Filipino people's imploration of the "aid of Almighty God". 39 Cetechism of the Catholic Churh, p. 512, Word and Life Publications: 2266. Preserving the common good of society requires rendering the aggressor unable to inflict harm. For this reason the traditional teaching of the Church has acknowledged as well-founded the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty. For analogous reasons those holding authority have the right to repel by armed force aggressors against the community in their charge. 40 Evangelium Vitae, items no. 55 and 56 states: 55. This should not cause surprise: to kill a human being, in whom the image of God is present, is a particularly serious sin. Only God is the master of life! Yet from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller

and deeper understanding of what God's commandment prohibits and prescribes. There are, in fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to selfdefence. The demanding commandment of love of neighbor, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: "You shall love your neighbor as yourself" (Mk. 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. This can only be done in virtue of a heroic love which deepens and transfigures the love of self into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime example of this self-offering is the Lord Jesus himself. Moreover, "legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State." Unfortunately it happens that the need to render the aggresor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor incapable whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason. 56. This is context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice even more in line with dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence." Public authority must redress the violation of personal and social rights by imposing on the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated. It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words,

when it would not be possible other wise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not partically non-existent.
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In any event, the principle, set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person."