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THIRD DIVISION [G.R. No. 81561. January 18, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee. Reynaldo B . Tatoy and Abelardo E . Rogacion for accused-appellant.
SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES; PRONOUNCEMENT OF UNITED STATES FEDERAL SUPREME COURT AND STATE APPELLATE COURTS, DOCTRINAL IN THIS JURISDICTION. Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction. 2.REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EXCLUSIONARY RULE ON EVIDENCE OBTAINED IN VIOLATION OF THE GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES. In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990). 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTIES MAY BE INVOKED ONLY AGAINST THE STATE, NOT UPON PRIVATE INDIVIDUALS. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]: 1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions . . . That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. 4.ID.; ID.; ID.; GUARANTEE AGAINST UNREASONABLE SEARCH AND SEIZURE; CASE AT BAR. The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. 5.ID.; ID.; ID.; ID.; MERE PRESENCE OF NBI AGENTS TO OBSERVE AND LOOK AT WHICH IS IN PLAIN SIGHT IS NOT A SEARCH. The mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the

arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L. Ed. 2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]). 6.ID.; CONSTITUTION; DOES NOT GOVERN RELATIONSHIP BETWEEN INDIVIDUALS. The constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. 7.REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EVIDENCE PROCURED BY INDIVIDUALS EFFECTED THROUGH PRIVATE SEIZURE, ADMISSIBLE. Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication. 8.ID.; ID.; CREDIBILITY; SELF-SERVING DENIALS, DESERVE NO WEIGHT IN LAW. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]). 9.ID.; ID.; ID.; REQUISITE FOR EVIDENCE TO BE BELIEVED. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 10.ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; THINGS WHICH A PERSON POSSESSES ARE PRESUMED OWNED BY HIM; CASE AT BAR. As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment. On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

DECISION

BIDIN, J p: This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article II and Section 2 (e)(i), Article I of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act. The facts as summarized in the brief of the prosecution are as follows: "On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift-wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6) "Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8). LLpr

"Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes

(proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiosity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
"Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987). "He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987). "Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane
"The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

"The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987). Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134). Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act. After trial, the court a quo rendered the assailed decision. In this appeal, accused/appellant assigns the following errors, to wit: "THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS. "THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED. cdphil "THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION." (Appellant's Brief, p. 1; Rollo, p. 55)

1.Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Secs. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III). Sections 2 and 3, Article III of the Constitution provide: "Section 2.The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. "Section 3.(1)The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. "(2)Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the1935 Charter which, worded as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1 [3], Article III). was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction. Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 2d [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution. In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990). It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies. LLpr On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State? We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

"1.This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions . . . ". . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life . . ." (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied). In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that: "(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served." The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics. And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals, (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957). Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said: "The search of which appellant complains, however, was made by a private citizen the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence ***complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities. "The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action." The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. LLphil Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction. The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it. First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcels containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]). In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term. That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows: "First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals,

between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder ." (Sponsorship Speech of
Commissioner Bernas; Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. cdphil If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62). The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else. Corollarily, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private

individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution. Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, inpari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication. 2.In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed. Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (Sec. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus: "Fiscal Formoso: "You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl? "WITNESS: "Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir." (TSN, October 8, 1987, p. 62; Original Records, p. 240) The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced. cdphil 3.Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila; that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10). Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere sayso" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]). Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise. LexLib

Premises considered, we see no error committed by the trial court in rendering the assailed judgment. WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs. SO ORDERED.

Fernan, C.J., Gutierrez, Jr . and Feliciano, JJ., concur.


EN BANC [G.R. No. L-29646. November 10, 1978.] MAYOR ANTONIO J. VILLEGAS, petitioner, vs. HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.

Angel C . Cruz, Gregorio A. Ejercito, Felix C . Chaves & Jose Laureta for petitioner. Sotero H . Laurel for respondents.

DECISION

FERNANDEZ, J p: This is a petition for certiorari to review the decision dated September 17, 1968 of respondent Judge Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive portion of which reads: "Wherefore, judgment is hereby rendered in favor of the petitioner and against the respondents, declaring Ordinance No. 6537 of the City of Manila null and void. The preliminary injunction is hereby made permanent. No pronouncement as to cost. SO ORDERED. Manila, Philippines, September 17, 1968. (SGD.) FRANCISCO ARCA Judge" 1

The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2 City Ordinance No. 6537 is entitled: "AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES." 3 Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or participate in any position or occupation or business enumerated therein, whether permanent, temporary or casual, without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00 except persons employed in the diplomatic or consular missions of foreign countries, or in the technical assistance programs of both the Philippine Government and any foreign government, and those working in their respective households, and members of religious orders or congregations, sect or denomination, who are not paid monetarily or in kind. cdrep Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment, upon conviction. 5 On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho, who was employed in Manila, filed a petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797, praying for the issuance of the writ of preliminary injunction and restraining order to stop the enforcement of Ordinance No. 6637 as well as for a judgment declaring said Ordinance No. 6537 null and void. 6 In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance declared null and void: 1)As a revenue measure imposed on aliens employed in the City of Manila, Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in taxation; 2)As a police power measure, it makes no distinction between useful and non-useful occupations, imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and that it fails to prescribe' any standard to guide and/or limit the action of the Mayor, thus, violating the fundamental principle on illegal delegation of legislative powers: 3)It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus, deprived of their rights to life, liberty and property and therefore, violates the due process and equal protection clauses of the Constitution. 7 On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of preliminary injunction.8 Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent Judge in the latter's decision of September 17, 1968: 9 "I. THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION. II. RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER.

III. RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION." Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an exercise of the police power of the state, it being principally a regulatory measure in nature. cdll The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal purpose is regulatory in nature has no merit. While it is true that the first part which requires that the alien shall secure an employment permit from the Mayor involves the exercise of discretion and judgment in the processing and approval or disapproval of applications for employment permits and therefore is regulatory in character the second part which requires the payment of P50.00 as employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the ordinance is to raise money under the guise of regulation. The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the classification, should be based on real and substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of P50.00 is being collected from every employed alien, whether he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid executive. Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity per se lawful. 10 In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a government agency power to determine the allocation of wheat flour among importers, the Supreme Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or controlled. It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled discretion but legal discretion to be exercised within the limits of the law. Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the mayor in the exercise of the power which has been granted to him by the ordinance. The ordinance in question violates the due process of law and equal protection rule of the Constitution. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens. 13 The trial court did not commit the errors assigned. LLpr WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.

SO ORDERED.

Barredo, Makasiar, Muoz Palma, Santos, and Guerrero, JJ ., concur. Castro, C . J ., Antonio and Aquino, JJ ., concur in the result. Concepcion Jr., J ., took no part.
Separate Opinions TEEHANKEE, J ., concurring: I concur in the decision penned by Mr. Justice Fernandez which affirms the lower court's judgment declaring Ordinance No. 6537 of the City of Manila null and void for the reason that the employment of aliens within the country is a matter of national policy and regulation, which properly pertain to the national government officials and agencies concerned and not to local governments, such as the City of Manila, which after all are mere creations of the national government.aisa dc The national policy on the matter has been determined in the statutes enacted by the legislature, viz, the various Philippine nationalization laws which on the whole recognize the right of aliens to obtain gainful employment in the country with the exception of certain specific fields and areas. Such national policies may not be interfered with, thwarted or in any manner negated by any local government or its officials since they are not separate from and independent of the national government. LibLex

As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs. Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the Insular (National Government . . . ). When the Insular (National) Government adopts a policy, a municipality is without legal authority to nullify and set at naught the action of the superior authority." Indeed, "not only must all municipal powers be exercised within the limits of the organic laws, but they must be consistent with the general law and public policy of the particular state . . . " (I McQuillin, Municipal Corporations, 2nd sec. 367, p. 1011). With more reason are such national policies binding on local governments when they involve our foreign relations with other countries and their nationals who have been lawfully admitted here, since in such matters the views and decisions of the Chief of State and of the legislature must prevail over those of subordinate and local governments and officials who have no authority whatever to take official acts to the contrary.

Fernando, J ., concurs.
FIRST DIVISION [G.R. No. 15574. September 17, 1919.] SMITH, BELL & COMPANY (LTD.), petitioner, vs. JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.

Ross & Lawrence for petitioner. Attorney-General Paredes for respondent.


SYLLABUS

1.CONSTITUTIONAL LAW; PHILIPPINE BILL OF RIGHTS; CONSTRUCTION. The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same sense as like provisions found in the United States Constitution. 2.ID.; ID.; FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS; ALIENS. The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality. 3.ID.; ID.; ID.; ID.; ID. The word "person" found in the Fourteenth Amendment and in the first sentence of the first paragraph of the Philippine Bill of Rights includes aliens. 4.ID.; ID.; ID.; ID.; ID. Private corporations are "persons" within the scope of the guaranties in so far as their property is concerned. 5.ID.; ID.; ID.; ID.; ID. Statutes which have attempted arbitrarily to forbid aliens to engage in any kind of business to earn their living have been held unconstitutional, while other statutes denying certain rights to aliens have been held constitutional 6.ID.; ID.; ID.; ID.; ID.; POLICE POWER. Neither the Fourteenth Amendment to the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed to interfere with the power of the State, sometimes termed its police power,' to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U. S., 27; New Orleans Gas Co. vs. Louisiana Light Co. [1885], 115 U. S., 650.) 7.ID.; ID.; ID.; ID.; ID.; ID. None of the provisions of the Philippine Organic Law could have had the effect of denying to the Government of the Philippine Islands, acting through its Legislature, the right to exercise that most essential, insistent, and illimitable of powers, the sovereign police power, in the promotion of the general welfare and the public interest. 8.ID., ID.; ID.; ID.; ID.; ID. The public domain or the common property or resources of the people of the State may be so regulated or distributed as to limit the use to its citizens. 9.ID.; ID.; ID.; ID.; ID.; ID. The limitation of employment in the construction of public works by, or for, a state or a municipality to citizens of the United States or of a State is permitted. 10.ID.; ID.; ID.; ID.; ID.; ID. Our local experience and our peculiar local conditions, often of controlling effect, have caused the executive branch of the Government of the Philippine Islands, always later with the sanction of the judicial branch, to take a firm stand with reference to the presence of undesirable foreigners. The Government has thus assumed to act for the all sufficient and primitive reasons of the benefit and protection of its own citizens and of the self-preservation and integrity of its dominion. 11.ID.; ID.; ID.; ID.; ID.; ID. Common carriers which, in the Philippines as in the United States and other countries, are affected with a public interest, can only be permitted to use the public waters, deemed a part of the national domain and open to public use, as a privilege, and under such conditions as to the Legislature may seem wise. 12.ID.; CONSTRUCTION; PUBLIC POLICY. The judiciary, alive to the dictates of the national welfare, can properly incline the 'scales of their decisions in favor of that solution which will most effectively promote the public policy. 13.ID.; ID., PRESUMPTION. All the presumption is in favor of the constitutionality of the law, and without good and strong reasons a court should not attempt to nullify the action of the Legislature. 14.ID.; ID.; ID. That is the true construction which will best carry legislative intention into effect. 15.ID.; COMMERCE; UNITED STATES COASTWISE TRADE. The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the power to nationalize ships built and owned in the United States by registries and enrollments and the recording of the muniments of title of American vessels. 16.ID.; ID.; ID. Under the Acts of Congress of December 31, 1792, and February 18, 1793 (1 Stat. at L., 287, 305) in case of alienation to a foreigner, all the privileges .of an American bottom were ipso facto forfeited. No vessel in which a foreigner was directly or indirectly interested could lawfully be registered as a vessel of the United States. 17.ID.; ID.; ID. The Act of Congress of May 28, 1895 (29 Stat. at L., 188) extended the privileges of registry from vessels wholly owned by a citizen or citizens of the United States to corporations created under the laws

of any of the states thereof. This law made it possible for a domestic corporation to obtain the registry or enrollment of its vessels even though some stock of the corporation was owned by aliens. 18.ID.; ID.; PHILIPPINE COASTWISE TRADE; ACT No. 2761, VALIDITY. The history of the different laws which have concerned the Philippine coastwise trade is set out in the opinion. The last Act on the subject, No. 2761, has returned to the restrictive idea of the original Customs Administrative Act which in turn was merely a reflection of the statutory language of the first American Congress. 19.ID.; ID.; ID.; ID. Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-alien shipping act. The ultimate purpose of the Legislature is to encourage Philippine shipbuilding. 20.ID.; ID.; ID.; ID. The Philippine Legislature made up entirely of Filipinos, representing the mandate of the Filipino people and the guardian of their rights, acting under practically autonomous powers, and imbued with a strong sense of Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common property exclusively by its citizens and the citizens of the United States, and protection for the common good of the people. 21.ID.; ID.; ID.; ID. Act No. 2761 of the Philippine Legislature, limiting certificates of the Philippine registry to vessels of domestic ownership vested in some one or more of the following classes of persons: (a) citizens or native inhabitants of the Philippine Islands; (b) citizens of the United States residing in the Philippine Islands; (c) any corporation or company composed wholly of citizens of the Philippine Islands or of the United States or both, is authorized by the Act of Congress of April 29, 1908, with its specific delegation of authority to the Government of the Philippine Islands to regulate the transportation of merchandise and passengers between ports or places therein, and by the grant by the Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature. 22.ID.; ID, ID.; ID. While the plaintiff, a corporation having alien stockholders, is entitled to the protection afforded by the due process of law and equal protection of the laws clause of the Philippine Bill of Rights, yet Act No. 2761, in denying to corporations such as the plaintiff the right to register vessels in the Philippine coastwise trade, does not belong to that vicious species of class legislation which must always be condemned, but falls within authorized exceptions, notably, within the purview of the police power. 23.ID.; ID.; ID.; ID. Act No. 2761 does not violate the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916, providing "that no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." 24.ID.; ID.; ID.; ID. Act No. 2761 is held to be valid and constitutional.

DECISION

MALCOLM, J p: A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of Customs of the port of Cebu, Philippine Islands, to compel him to issue a certificate of Philippine registry to the petitioner for its motor vessel Bato. The Attorney-General, acting as counsel for respondent, demurs to the petition on the general ground that it does not state facts sufficient to constitute a cause of action. While the facts are thus admitted, and while, moreover, the pertinent provisions of law are clear and understandable, and interpretative American jurisprudence is found in abundance, yet the issue submitted is not lightly to be resolved. The question, flatly presented, is, whether Act No. 2761 of the Philippine Legislature is valid or, more directly stated, whether the Government of the Philippine Islands, through its Legislature, can deny the registry of vessels in its coastwise trade to corporations having alien stockholders. FACTS. Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its stockholders are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in 1916, of more than fifteen tons gross. The Bato was brought to Cebu in the present year for the purpose of transporting plaintiff's merchandise between ports in the Islands. Application was made at Cebu, the home port of the vessel, to the Collector of Customs for a certificate of Philippine registry. The Collector refused to issue the

certificate, giving as his reason that all the stock- holders of Smith, Bell & Co., Ltd., were not citizens either of the United States or of the Philippine Islands. The instant action is the result. LAW. The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906, but reenacting a portion of section 3 of this Law, and still in force, provides in its section 1: "That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the Philippine Islands, the Government of the Philippine Islands is hereby authorized to adopt, from time to time, and enforce regulations governing the transportation of merchandise and passengers between ports or places in the Philippine Archipelago." (35 Stat. at L., 70; Section 3912, U. S. Comp. Stat. [1916]; 7 Pub. Laws, 364.) The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in sections 3, (first paragraph, first sentence), 6, 7, 8, 10, and 31, as follows: "Sec. 3.That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." . . . "SEC. 6.That the laws now in force in the Philippines shall continue in force and effect, except as altered, amended, or modified herein, until altered, amended, or repealed by the legislative authority herein provided or by Act of Congress of the United States. "SEC. 7.That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due enactment to amend, alter, modify, or repeal any law, civil or criminal, continued in force by this Act as it may from time to time see fit. "This power shall specifically extend with the limitation herein provided as to the tariff to all laws relating to revenue and taxation in effect in the Philippines. "SEC. 8.That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine Legislature, authorized by this Act." "SEC. 10.That while this Act provides that the Philippine government shall have the authority to enact a tariff law the trade relations between the islands and the United States shall continue to be governed exclusively by laws of the Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law until they shall receive the approval of the President of the United States, nor shall any act of the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines become a law until it has been approved by the President of the United States:Provided further, That the President shall approve or disapprove any act mentioned in the foregoing proviso within six months from and after its enactment and submission for his approval, and if not disapproved within such time it shall become a law the same as if it had been specifically approved." "SEC. 31.That all laws or parts of laws applicable to the Philippines not in conflict with any of the provisions of this Act are hereby continued in force and effect." (39 Stat at L., 546.) On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172 of the Administrative Code to read as follows: "SEC. 1172.Certificate of Philippine register. Upon registration of a vessel of domestic ownership, and of more than fifteen tons gross, a certificate of Philippine register shall be issued for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the taking of the certificate of Philippine register shall be optional with the owner. " 'Domestic ownership,' as used in this section, means ownership vested in some one or more of the following classes of persons: (a) Citizens or native inhabitants of the Philippine Islands; ( b) citizens of the United States residing in the Philippine Islands; ( c) any corporation or company composed wholly of citizens of the Philippine Islands or of the United States or of both, created under the laws of the United States, or of any State thereof, or of the Philippine Islands, provides some duly authorized officer thereof, or the managing agent or master of the vessel resides in the Philippine Islands. "Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a certificate of Philippine register under existing law, shall likewise be deemed a vessel of

domestic ownership so long as there shall not be any change in the ownership thereof nor any transfer of stock of the companies or corporations owning such vessel to persons not included under the last preceding paragraph." Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as follows: "SEC. 1176.Investigation into character of vessel. No application for a certificate of Philippine register shall be approved until the collector of customs is satisfied from an inspection of the vessel that it is engaged or destined to be engaged in legitimate trade and that it is of domestic ownership as such ownership is defined in section eleven hundred and seventy-two of this Code. "The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or passengers in order to ascertain whether the vessel is engaged in legitimate trade and is entitled to have or retain the certificate of Philippine register." "SEC. 1202.Limiting number of foreign officers and engineers on board vessels. No Philippine vessel operating in the coastwise trade or on the high seas shall be permitted to have on board more than one master or one mate and one engineer who are not citizens of the United States or of the Philippine Islands, even if they hold licenses under section one thousand one hundred and ninety-nine hereof. No other person who is not a citizen of the United States or of the Philippine Islands shall be an officer or a member of the crew of such vessel. Any such vessel which fails to comply with the terms of this section shall be required to pay an additional tonnage tax of fifty centavos per net ton per month during the continuance of said failure." ISSUES. Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act No. 2761 of the Philippine Legislature is valid in whole or in part whether the Government of the Philippine Islands, through its Legislature, can deny the registry of vessel in its coast- wise trade to corporations having alien stockholders. OPINION. 1.Considered from a positive standpoint, there can exist no measure of doubt as to the power of the Philippine Legislature to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific delegation of authority to the Government of the Philippine Islands to regulate the transportation of merchandise and passengers between ports or places therein, the liberal construction given to the provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the grant by the Act of Congress of August 29, 1916, of general legislative power to the Philippine Legislature, are certainly superabundant authority for such a law. While the Act of the local legislature may in a way be inconsistent with the Act of Congress regulating the coasting trade of the Continental United States, yet the general rule that only such laws of the United States have force in the Philippines as are expressly extended thereto, and the abnegation of power by Congress in favor of the Philippine Islands would leave no starting point for convincing argument. As a matter of fact, counsel for petitioner does not assail legislative action from this direction. (See U. S. vs. Bull [1910], 15 Phil., 7; Sinnot vs. Davenport [1859] 22 How., 227.) 2.It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No. 2761. The first paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of Rights as set forth in the Jones Law, provides "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in effect, prohibits the corporation from owning vessels, and because classification of corporations based on the citizenship of one or more of their stockholders is capricious, and that Act No. 2761 deprives the corporation of its property without due process of law because by the passage of the law the company was automatically deprived of every beneficial attribute of ownership in the Bato and left with the naked title to a boat it could not use. The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same sense as like provisions found in the United States Constitution. While the "due process of law and equal protection of the laws" clause of the Philippine Bill of Rights is couched in slightly different words than the corresponding clause of the Fourteenth Amendment to the United States Constitution, the first should be interpreted and given the same force and effect as the latter. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470, U. S. vs. Bull [1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has been announced in classic decisions of the United States Supreme Court. Even at the expense of restating what is so well known, these basic principles must again be set down in order to serve as the basis of this decision.

The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality. The word "person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations, likewise, are "persons" within the scope of the guaranties in so far as their property is concerned. (Santa Clara County vs. Southern Pac. R. R. Co. [1886], 118 U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888], 125 U. S., 181; Covington &; L. Turnpike Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in view of providing diversity of treatment may be made among corporations, but must be based upon some reasonable ground and not be a mere arbitrary selection. (Gulf, Colorado & Santa Fe Railway Co. vs. Ellis [1897], 165 U. S., 150.) Examples of laws held unconstitutional because of unlawful discrimination against aliens could be cited. Generally, these decisions relate to statutes which had attempted arbitrarily to forbid aliens to engage in ordinary kinds of business to earn their living. (State vs. Montgomery [1900], 94 Maine, 192, peddling but see Commonwealth vs. Hana [1907], 195 Mass., 262; Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S 356, discrimination against Chinese ; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed., 481; Fraser vs McConway & Torley Co. [1897], 82 Fed., 257, Juniata Limestone Co. vs. Fagley [1898], 187 Penn., 193, all relating to the employment of aliens by private corporations.) A literal application of general principles to the facts before us would, of course, cause the inevitable deduction that Act No. 2761 is unconstitutional by reason of its denial to a corporation, some of whose members are foreigners, of the equal protection of the laws. Like all beneficent propositions, deeper research discloses provisos. Examples of a denial of rights to aliens notwithstanding the provisions of the Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md., 250, licenses to sell spirituous liquors denied to persons not citizens of the United States; Commonwealth vs. Hana [1907], 19.~ Mass., 262, excluding aliens from the right to peddle; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138, prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens with reference to the taking for private use of the common property in fish and oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U. S., 175, and Crane vs. New York [1915], 239 U. S., 195, limiting employment on public works by, or for, the State or a municipality to citizens of the United States.) One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth Amendment to the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed to interfere with the power of the State, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity- From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U. S., 27; New Orleans Gas Co. vs. Louisiana Light Co. [1885], 115 U. S., 650.) This is the same police power which the United States Supreme Court says "extends to so dealing with the conditions which exist in the state as to bring out of them the greatest welfare of its people." (Bacon vs. Walker [1907], 204 U-. S., 311.) For quite similar reasons, none of the provisions of the Philippine Organic Law could have had the effect of denying to the Government of the Philippine Islands, acting through its Legislature, the right to exercise that most essential, insistent, and illimitable of powers, the sovereign police power, in the promotion of the general welfare and the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Raferty [1915], 32 Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.l Another notable exception permits of the regulation or distribution of the public domain or the common property or resources of the people of the State, so that the use may be limited to its citizens. (Ex Parte Gilleti [1915], 70 Fla., 442; McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138.) Still another exception permits of the limitation of employment in the construction of public works by, or for, the State or a municipality to citizens of the United States or of the State. (Atkin vs. Kansas [1903], 191 U. S., 207; Heim vs. McCall [1915], 239 U.' S., 175; Crane vs. New York [1915], 239 U. S., 195.) Even as to classification, it is admitted that a State may classify with reference to the evil to be prevented; the question is a practical one, dependent upon experience. (Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S., 138.) To justify that portion of Act No. 2761 which permits corporations or companies to obtain a certificate of Philippine registry only on condition that they be composed wholly of citizens of the Philippine Islands or of the United States or both, as not infringing Philippine Organic Law, it must be done under some one of the exceptions here mentioned. This must be done, moreover, having particularly in mind what is so often of controlling effect in this jurisdiction our local experience and our peculiar local conditions. To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more than three thousand islands. Literally, and absolutely, steamship lines are, for an Insular territory thus situated, the

arteries of commerce. If one be severed, the life-blood of the nation is lost. If on the other hand these arteries are protected, then the security of the country and the promotion of the general welfare is sustained. Time and again, with such conditions confronting it, has the executive branch of the Government of the Philippine Islands, always later with the sanction of the judicial branch, taken a firm stand with reference to the presence of undesirable foreigners. The Government has thus assumed to act for the all-sufficient and primitive reason of the benefit and protection of its own citizens and of the self-preservation and integrity of its dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco, Tiaco and Crossfield [1910], 16 Phil., 534; 228 U. S., ;549; In re McCulloch Dick [1918], 38 Phil., 41. ) Boats owned by foreigners, particularly by such solid and reputable firms as the instant claimant, might indeed traverse the waters of the Philippines for ages without doing any particular harm. Again, some evil-minded foreigner might very easily take advantage of such lavish hospitality to chart Philippine waters, to obtain valuable information for unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or American commerce. Moreover, under the Spanish portion of Philippine law, the waters within the domestic jurisdiction are deemed part of the national domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866. arts. 1. 2. 3.) Common carriers which in the Philippines as in the United States and other countries are, as Lord Hale said, "affected with a public interest," can only be permitted to use these public waters as a privilege and under such conditions as to the representatives of the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.) In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U. S., 138), a case hereinbefore mentioned, Justice Holmes delivering the opinion of the United States Supreme Court said: "This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or property, and 'to that end' makes it unlawful for such foreignborn person to own or be possessed of a shotgun or rifle; with a penalty of $25 and a forfeiture of the gun or guns. The plaintiff in error was found guilty and was sentenced to pay the above mentioned fine. The judgment was affirmed on successive appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the statute is contrary to the 14th Amendment and also is in contravention of the treaty between the United States and Italy, to which latter country the plaintiff in error belongs. "Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property, and discrimination against such aliens as a class. But the former really depends upon the latter, since it hardly can be disputed that if the lawful object, the protection of wild life (Geer vs. Connecticut, 161 U. S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep., 600), warrants the discrimination, the means adopted for making it effective also might be adopted. . . . "The discrimination undoubtedly presents a more difficult question. But we start with the general consideration that a state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. . . . "The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent. (Barrett vs. Indiana, 229 U. S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.) "Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the state legislature was wrong in its facti. (Adams vs. Milwaukee, 228 U. S., 572, 583; 57 L. ed., 971, 977; 33 Sup. Ct. Rep., 610.) If we might trust popular speech in some states it was right; but it is enough that this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. . . . "Judgment affirmed." We are inclined to the view that while Smith, Bell & Co Ltd., a corporation having alien stockholders, is entitled to the protection afforded by the-due process of law and equal protection of the laws clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith, Bell & Co. Ltd., the right to register vessels in the Philippines coastwise trade, does not belong to that vicious species of class legislation which must always be condemned, but does fall within authorized exceptions, notably, within the purview of the police power, and so does not offend against the constitutional provision. This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative history of the United States and the Philippine Islands, and, probably, the legislative history of other countries, if we were to take the time to search it out, might disclose similar attempts at restriction on the right to enter the

coastwise trade, and might thus furnish valuable aid by which to ascertain and, if possible, effectuate legislative intention. 3.The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the power to nationalize ships built and owned in the United States by registries and enrollments, and the recording of the muniments of title of American vessels. The Congress "may encourage or it may entirely prohibit such commerce, and it may regulate in any way it may see fit between these two extremes." (U. S. vs. Craig [1886], 28 Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How., 283.) Acting within the purview of such power, the first Congress of the United States had not been long convened before it enacted on September 1, 1789, "An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes." Section 1 of this law provided that for any ship or vessel to obtain the benefits of American registry, it must belong wholly to a citizen or citizens of the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed, but the same idea was carried into the Acts of Congress of December 31, 1792 and February 18, 179.3. (1 Stat. at L., 287, 305.) Section 4 of the Act of 1792 provided that in order to obtain the registry of any vessel, an oath shall be taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to make such registry, declaring, "that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence, or otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even went so far as to say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of such transfer a citizen of and resident within the United States, . . . every such vessel with her tackle, apparel, and furniture, and the cargo found on board her, shall be forfeited." In case of alienation to a foreigner, Chief Justice Marshall said that all the privileges of an American bottom were ipso facto forfeited. (U. S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even as late as 1873, the Attorney-General of the United States was of the opinion that under the provisions of the Act of December 31, 1792 no vessel in which a foreigner is directly or indirectly interested can lawfully be registered as a vessel of the United States. (14 Op. Atty.Gen. [U. S.], 340.) These laws continued in force without contest, although possibly the Act of March 3, 1825, may have affected them until amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the privileges of registry from vessels wholly owned by a citizen or citizens of the United States to corporations created under the laws of any of the states thereof. The law, as amended, made possible the deduction that a vessel belonging to a domestic corporation was entitled to registry or enrollment even though some stock of the company be owned by aliens. The right of ownership of stock in a corporation was thereafter distinct from the right to hold the property by the corporation. (Humphreys vs. McKissock [1890], 140 U. S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U. S.], 188.) On American occupation of the Philippines, the new government found a substantive law in operation in the Islands with a civil law history which it wisely continued in force. Article fifteen of the Spanish Code of Commerce permitted any foreigner to engage in Philippine trade if he had legal capacity to do so under the laws of his nation. When the Philippine Commission came to enact the Customs Administrative Act (No. 355) in 1902, it returned to the old American policy of limiting the protection and flag of the United States to vessels owned by citizens of the United States or by native inhabitants of the Philippine Islands. (Sec. 117.) Two years later, the same body reverted to the existing Congressional law by permitting certificates to be issued to a citizen of the United States or to a corporation or company created under the laws of the United States or of any state thereof or of the Philippine Islands. (Act No. 1235, sec. 3. ) The two administrative codes repeated the same provision with the necessary amplification of inclusion of citizens or native inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And now Act No. 2761 has returned to the restrictive idea of the original Customs Administrative Act which in turn was merely a reflection of the statutory language of the first American Congress. Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine registry, are thus found not to be as radical as a first reading would make them appear. Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an antialien shipping act. The ultimate purpose of the Legislature is to encourage Philippine ship-building. This, without doubt, has, likewise, been the intention of the United States Congress in passing navigation or tariff laws on different occasions. The object of such a law, the United States Supreme Court once said, was to encourage American trade, navigation, and ship-building by giving American ship-owners exclusive privileges. ( Old Dominion Steamship Co. vs. Virginia [1905], 198 U. S., 299; Kent's Commentaries, Vol. 3, p. 139.) In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the following:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges. a contra distinguished from foreign; and to preserve the Government from fraud by foreigners, in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise that this whole system is projected." The United States Congress in assuming its grave responsibility of legislating wisely for a new country did so imbued with a spirit of Americanism. Domestic navigation and trade, it decreed, could only be carried on by citizens of the United States. If the representatives of the American people acted in this patriotic manner to advance the national policy, and if their action was accepted without protest in the courts, who can say that they did not enact such beneficial laws under the all-pervading police power, with the prime motive of safeguarding the country and of promoting its prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos, representing the mandate of the Filipino people and the guardian of their rights, acting under practically autonomous powers, and imbued with a strong sense of Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common property exclusively by its citizens and the citizens of the United States, and protection for the common good of the people. Who can say, therefore, especially can a court, that with all the facts and circumstances affecting the Filipino people before it, the Philippine Legislature has erred in the enactment of Act No. 2761? Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion amidst dusty tomes and ancient records, but, as keen spectators of passing events and alive to the dictates of the general the national welfare, can incline the scales of their decisions in favor of that solution which will most effectively promote the public policy. All the presumption is in favor of the constitutionality of the law and without good and strong reasons, courts should not attempt to nullify the action of the Legislature. "In construing a statute enacted by the Philippine Commission (Legislature), we deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law." (In re Guaria [1913], 24 Phil., 36; U. S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which will best carry legislative intention into effect. With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that the limitation of domestic ownership for purposes of obtaining a certificate of Philippine registry in the coastwise trade to citizens of the Philippine Islands, and to citizens of the United States, does not violate the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916. No treaty right is relied upon. Act No. 2761 of the Philippine Legislature is held valid and constitutional. The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.

Arellano, C. J., Torres, Johnson, Araullo, Street, Avancea and Moir, JJ., concur.

EN BANC [G.R. No. 111953. December 12, 1997.] HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents.

The Solicitor General for petitioners. Manuel E. Valenzuela and Jesus P. Amparo for private respondents.

SYNOPSIS July 15, 1992, PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92, limiting the term of Appointment of harbor pilots to one (1) year subject to renewal or cancellation by the authority after conduct of a rigid evaluation of the appointee's performance. Respondents, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by the Department Secretary that the matter of reviewing, recalling or annulling PPA's administrative issuances lies exclusively with its Board of Directors as its governing body. Respondents appealed to the Office of the President which ordered the PPA to hold in abeyance the implementation of the administrative order. However, the Office of the President through then Assistant Executive Secretary for Legal Affairs Renato C. Corona dismissed the appeal/petition and lifted the restraining order issued earlier. Respondents filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Manila. The trial court ruled that herein petitioners have acted in excess of jurisdiction and with grave abuse of discretion in promulgating PPA AO No. 04-92 including its implementing memoranda. The trial court also declared the administrative order null and void and permanently enjoined its implementation. Hence, herein petitioners elevated the case to the Court on certiorari. The Supreme Court ruled that PPA-AO No. 04-92 was issued in utter disregard of respondent's right against deprivation of property without due process of law. The Court held that the provision limiting the term of appointment of harbor pilots unduly restricts the right of harbor pilots to enjoy their profession before their retirement. Renewal of the license is now dependent on a rigid evaluation of performance which is conducted only after the license has been canceled. Hence, the use of the term "renewal." It is the "pre-evaluation" cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is deprivation of property without due process of law. Petition denied. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; PPA-AO NO. 04-92; DECLARED UNCONSTITUTIONAL; THE PREEVALUATION CANCELLATION OF THE HARBOR PILOTS' LICENSES IS WHAT PRIMARILY MAKES THE ADMINISTRATIVE ORDER UNREASONABLE AND CONSTITUTIONALLY INFIRM; IT CONSTITUTES DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a "rigid evaluation of performance" which is conducted only after the license has already been canceled. Hence, the use of the term "renewal." It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. 2.ID.; ID.; AN UNNECESSARY ENACTMENT; SINCE THE LAW ADDS NOTHING NEW OR SUBSTANTIAL IT MUST BE STRUCK DOWN. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a "surplusage" and, therefore an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPAAO No. 04-92 must be struck down.

DECISION

ROMERO, J p:

In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92) limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents' right to exercise their profession and their right to due process of law? The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPA's charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, 1 the PPA promulgated PPA-AO-03-85 2 on March 21, 1985, which embodied the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses 3 and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance 4 that they are given permanent and regular appointments by the PPA itself 5 to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager. 6 Harbor pilots in every harbor district are further required to organize themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor. Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 7 on July 15, 1992, whose avowed policy was to "instill effective discipline and thereby afford better protection to the port users through the improvement of pilotage services." This was implemented by providing therein that "all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only " and that "all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from

date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance."

On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that "the matter of reviewing, recalling or annulling PPA's administrative issuances lies exclusively with its Board of Directors as its governing body." Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 8 which laid down the criteria or factors to be considered in the reappointment of harbor pilots viz.: (1) Qualifying Factors: 9 safety record and physical/mental medical exam report and, (2) Criteria for Evaluation: 10 promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age. Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC. On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services. On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. 11 He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section. 6 of P.D. No .857, mandating it "to control, regulate and supervise pilotage and conduct of pilots in any port district." On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that:

"The exercise of one's profession falls within the constitutional guarantee against wrongful deprivation

of, or interference with, property rights without due process. In the limited context of this case, PPAAO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more. than to

improve pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointee's performance.

PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in
PPA's jurisdictional area." (Emphasis supplied) Finally, as regards the alleged "absence of ample prior consultation" before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with "relevant Government agencies." Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the Director-General of the National Economic Development Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order. Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: 12 "WHEREFORE, for all the foregoing, this court hereby rules that: 1.Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders; 2.PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void; 3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its implementing Memoranda, Circulars and Orders. No costs. SO ORDERED." The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. 13 Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any "withdrawal or alteration" of such property right must be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court on certiorari. After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPAAO No. 04-92 was issued in stark disregard of respondents' right against deprivation of property without due process of law. Consequently, the instant petition must be denied. Section 1 of the Bill of Rights lays down what is known as the "due process clause" of the Constitution, viz.: "SEC. 1.No person shall be deprived of life, liberty, or property without due process of law, . . ." In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process

"refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just." 14 PPA-AO No. 04-92 must be examined in light of this distinction. prLL Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby "relevant government agencies" and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, 15 where it declared that "(a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of." In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times 16 before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, "which issues the licenses of pilots after administering the pilots' examinations," was not consulted, 17 the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted. 18 Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. 19 Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be "withdrawn or shortened" by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law. There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that "(t)he exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process." 20He merely expressed the opinion that "(i)n the limited context of this case PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby, and that "PPA-AO 0492 does not forbid, but merely regulates, the exercise by harbor pilots of their profession." As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous. Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is "the granting of license especially to practice a profession." It is also "the system of granting licenses (as for professional practice) in accordance with established standards." 21 A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. 22 Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed: "Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3) For chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots." Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, "(a)ll existing regular appointments which have

been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only," and "(a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance." It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms whichipso facto expire at the end of that period. Renewal of their license is now dependent on a "rigid evaluation of performance" which is conducted only after the license has already been cancelled. Hence, the use of the term "renewal " It is this preevaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law.

The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a "surplusage" 23 and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down. Finally, respondents' insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial court's finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 0492. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities. WHEREFORE the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs. Cdpr SO ORDERED.

Narvasa, C .J ., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ .,concur. Martinez, J ., took no part.

FIRST DIVISION [G.R. No. 149927. March 30, 2004.] REPUBLIC OF THE PHILIPPINES, Represented by the Department of Environment and Natural Resources (DENR) Under then Minister ERNESTO R. MACEDA; and Former Government Officials CATALINO MACARAIG, FULGENCIO S. FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN JUAN,petitioners, vs. ROSEMOOR MINING AND DEVELOPMENT CORPORATION, PEDRO DEL CONCHA, and ALEJANDRO and RUFO DE GUZMAN, respondents.

DECISION

PANGANIBAN, J p: A mining license that contravenes a mandatory provision of the law under which it is granted is void. Being a mere privilege, a license does not vest absolute rights in the holder. Thus, without offending the due process and the nonimpairment clauses of the Constitution, it can be revoked by the State in the public interest.

The Case
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, seeking to nullify the May 29, 2001 Decision 2and the September 6, 2001 Resolution 3 of the Court of Appeals (CA) in CA-GR SP No. 46878. The CA disposed as follows: "WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED in toto." 4 The questioned Resolution denied petitioners' Motion for Reconsideration. On the other hand, trial court's Decision, which was affirmed by the CA, had disposed as follows: "WHEREFORE, judgment is hereby rendered as follows: '1.Declaring that the cancellation of License No. 33 was done without jurisdiction and in gross violation of the Constitutional right of the petitioners against deprivation of their property rights without due process of law and is hereby set aside. '2.Declaring that the petitioners right to continue the exploitation o f the marble deposits in the area covered by License No. 33 is maintained for the duration of the period of its life of twentyfive (25) years, less three (3) years of continuous operation before License No. 33 was cancelled, unless sooner terminated for violation of any of the conditions specified therein, with due process. '3.Making the Writ of preliminary injunction and the Writ of Preliminary Mandatory Injunction issued as permanent. '4.Ordering the cancellation of the bond filed by the Petitioners in the sum of 1 Million. '5.Allowing the petitioners to present evidence in support of the damages they claim to have suffered from, as a consequence of the summary cancellation of License No. 33 pursuant to the agreement of the parties on such dates as may be set by the Court; and '6.Denying for lack of merit the motions for contempt, it appearing that actuations of the respondents were not contumacious and intended to delay the proceedings or undermine the integrity of the Court. 'No pronouncement yet as to costs.' " 5

The Facts
The CA narrated the facts as follows: "The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Alejandro De La Concha, and Rufo De Guzman, after having been granted permission to prospect for marble deposits in the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of high

quality and in commercial quantities in Mount Mabio which forms part of the Biak-na-Bato mountain range. "Having succeeded in discovering said marble deposits, and as a result of their tedious efforts and substantial expenses, the petitioners applied with the Bureau of Mines, now Mines and Geosciences Bureau, for the issuance of the corresponding license to exploit said marble deposits. xxx xxx xxx "After compliance with numerous required conditions, License No. 33 was issued by the Bureau of Mines in favor of the herein petitioners. xxx xxx xxx "Shortly after Respondent Ernesto R. Maceda was appointed Minister of the Department of Energy and Natural Resources (DENR), petitioners License No. 33 was cancelled by him through his letter to ROSEMOOR MINING AND DEVELOPMENT CORPORATION dated September 6, 1986 for the reasons stated therein. Because of the aforesaid cancellation, the original petition was filed and later substituted by the petitioners AMENDED PETITION dated August 21, 1991 to assail the same. xxx xxx xxx "Also after due hearing, the prayer for injunctive relief was granted in the Order of this Court dated February 28, 1992. Accordingly, the corresponding preliminary writs were issued after the petitioners filed their injunction bond in the amount of ONE MILLION PESOS (P1,000,000.00). xxx xxx xxx "On September 27, 1996, the trial court rendered the herein questioned decision." 6 The trial court ruled that the privilege granted under respondents' license had already ripened into a property right, which was protected under the due process clause of the Constitution. Such right was supposedly violated when the license was cancelled without notice and hearing. The cancellation was said to be unjustified, because the area that could be covered by the four separate applications of respondents was 400 hectares. Finally, according to the RTC, Proclamation No. 84, which confirmed the cancellation of the license, was an ex post facto law; as such, it violatedSection 3 of Article XVIII of the 1987 Constitution. On appeal to the Court of Appeals, herein petitioners asked whether PD 463 or the Mineral Resources Development Decree of 1974 had been violated by the award of the 330.3062 hectares to respondents in accordance with Proclamation No. 2204. They also questioned the validity of the cancellation of respondents Quarry License/Permit (QLP) No. 33.

Ruling of the Court of Appeals


Sustaining the trial court in toto, the CA held that the grant of the quarry license covering 330.3062 hectares to respondents was authorized by law, because the license was embraced by four (4) separate applications each for an area of 81 hectares. Moreover, it held that the limitation under Presidential Decree No. 463 that a quarry license should cover not more than 100 hectares in any given province was supplanted by Republic Act No. 7942, 7 which increased the mining areas allowed under PD 463. It also ruled that the cancellation of respondents' license without notice and hearing was tantamount to a deprivation of property without due process of law. It added that under the clause in the Constitution dealing with the non-impairment of obligations and contracts, respondents' license must be respected by the State. AHDaET Hence, this Petition. 8

Issues

Petitioners submit the following issues for the Courts consideration: "(1)[W]hether or not QLP No. 33 was issued in blatant contravention of Section 69, P.D. No. 463; and (2) whether or not Proclamation No. 84 issued by then President Corazon Aquino is valid. The corollary issue is whether or not the Constitutional prohibition against ex post facto law applies to Proclamation No. 84" 9

The Courts Ruling


The Petition has merit.

First Issue: Validity of License


Respondents contend that the Petition has no legal basis, because PD 463 has already been repealed. 10 In effect, they ask for the dismissal of the Petition on the ground of mootness. PD 463, as amended, pertained to the old system of exploration, development and utilization of natural resources through licenses, concessions or leases. 11 While these arrangements were provided under the 1935 12 and the 1973 13Constitutions, they have been omitted by Section 2 of Article XII of the 1987 Constitution. 14 With the shift of constitutional policy toward "full control and supervision of the State" over natural resources, the Court in Miners Association of the Philippines v. Factoran Jr. 15 declared the provisions of PD 463 as contrary to or violative of the express mandate of the 1987 Constitution. The said provisions dealt with the lease of mining claims; quarry permits or licenses covering privately owned or public lands; and other related provisions on lease, licenses and permits. RA 7942 or the Philippine Mining Act of 1995 embodies the new constitutional mandate. It has repealed or amended all laws, executive orders, presidential decrees, rules and regulations or parts thereof that are inconsistent with any of its provisions. 16 It is relevant to state, however, that Section 2 of Article XII of the 1987 Constitution does not apply retroactively to a "license, concession or lease" granted by the government under the 1973 Constitution or before the effectivity of the 1987 Constitution on February 2, 1987. 17 As noted in Miners Association of the Philippines v. Factoran Jr., the deliberations of the Constitutional Commission 18 emphasized the intent to apply the said constitutional provision prospectively. While RA 7942 has expressly repealed provisions of mining laws that are inconsistent with its own, it nonetheless respects previously issued valid and existing licenses, as follows: "SECTION 5.Mineral Reservations. When the national interest so requires, such as when there is a need to preserve strategic raw materials for industries critical to national development, or certain minerals for scientific, cultural or ecological value, the President may establish mineral reservations upon the recommendation of the Director through the Secretary. Mining operations in existing mineral reservations and such other reservations as may thereafter be established, shall be undertaken by the Department or through a contractor: Provided, That a small scale-mining cooperative covered by Republic Act No. 7076 shall be given preferential right to apply for a small-scale mining agreement for a maximum aggregate area of twenty-five percent (25%) of such mineral reservation, subject to valid existing mining/quarrying rights as provided under Section 112 Chapter XX hereof. All submerged lands within the contiguous zone and in the exclusive economic zone of the Philippines are hereby declared to be mineral reservations.

"xxx xxx xxx

"SECTION 7.Periodic Review of Existing Mineral Reservations. The Secretary shall periodically review existing mineral reservations for the purpose of determining whether their continued existence is consistent with the national interest, and upon his recommendation, the President may, by proclamation, alter or modify the boundaries thereof or revert the same to the public domain without prejudice to prior existing rights. "SECTION 18.Areas Open to Mining Operations. Subject to any existing rights or reservations and prior agreements of all parties, all mineral resources in public or private lands, including timber or forestlands as defined in existing laws, shall be open to mineral agreements or financial or technical assistance agreement applications. Any conflict that may arise under this provision shall be heard and resolved by the panel of arbitrators." "SECTION 19.Areas Closed to Mining Applications. Mineral agreement or financial or technical assistance agreement applications shall not be allowed: (a)In military and other government reservations, except upon prior written clearance by the government agency concerned; (b)Near or under public or private buildings, cemeteries, archeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams or other infrastructure projects, public or private works including plantations or valuable crops, except upon written consent of the government agency or private entity concerned; (c)In areas covered by valid and existing mining rights; (d)In areas expressly prohibited by law; (e)In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale miners, in which case a royalty payment upon the utilization of minerals shall be agreed upon by the parties, said royalty forming a trust fund for the socioeconomic development of the community concerned; and (f)Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 2 5, series of 1992 and other laws. "SECTION 112.Non-impairment of Existing Mining/ Quarrying Rights. All valid and existing mining

lease contracts, permits/licenses, leases pending renewal, mineral production-sharing agreements granted under Executive Order No. 279, at the date of effectivity of this Act, shall remain valid, shall not be impaired, and shall be recognized by the Government: Provided, That the provisions of Chapter

XIV on government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to avail of said provisions: Provided, further, That no renewal of mining lease contracts shall be made after the expiration of its term: Provided, finally, That such leases, production-sharing agreements, financial or technical assistance agreements shall comply with the applicable provisions of this Act and its implementing rules and regulations. "SECTION 113.Recognition of Valid and Existing Mining Claims and Lease/Quarry Application. promulgation of the rules and regulations implementing this Act. (Italics supplied)

Holders of valid and existing mining claims, lease/quarry applications shall be given preferential rights to enter into any mode of mineral agreement with the government within two (2) years from the
Section 3(p) of RA 7942 defines an existing mining/quarrying right as "a valid and subsisting mining claim or permit or quarry permit or any mining lease contract or agreement covering a mineralized area granted/issued under pertinent

mining laws." Consequently, determining whether the license of respondents falls under this definition would be relevant to fixing their entitlement to the rights and/or preferences under RA 7942. Hence, the present Petition has not been mooted. Petitioners submit that the license clearly contravenes Section 69 of PD 463, because it exceeds the maximum area that may be granted. This incipient violation, according to them, renders the license void ab initio. Respondents, on the other hand, argue that the license was validly granted, because it was covered by four separate applications for areas of 81 hectares each. The license in question, QLP No. 33, 19 is dated August 3, 1982, and it was issued in the name of Rosemoor Mining Development Corporation. The terms of the license allowed the corporation to extract and dispose of marbleized limestone from a 330.3062-hectare land in San Miguel, Bulacan. The license is, however, subject to the terms and conditions of PD 463, the governing law at the time it was granted; as well as to the rules and regulations promulgated thereunder. 20 By the same token, Proclamation No. 2204 which awarded to Rosemoor the right of development, exploitation, and utilization of the mineral site expressly cautioned that the grant was subject to "existing policies, laws, rules and regulations." 21 The license was thus subject to Section 69 of PD 463, which reads: "Section 69.Maximum Area of Quarry License Notwithstanding the provisions of Section 14 hereof, a

quarry license shall cover an area of not more than one hundred (100) hectares in any one province and not more than one thousand (1,000) hectares in the entire Philippines." (Italics supplied)

The language of PD 463 is clear. It states in categorical and mandatory terms that a quarry license, like that of respondents, should cover a maximum of 100 hectares in any given province. This law neither provides any exception nor makes any reference to the number of applications for a license. Section 69 of PD 463 must be taken to mean exactly what it says. Where the law is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. 22 Moreover, the lower courts' ruling is evidently inconsistent with the fact that QLP No. 33 was issued solely in the name of Rosemoor Mining and Development Corporation, rather than in the names of the four individual stockholders who are respondents herein. It likewise brushes aside a basic postulate that a corporation has a separate personality from that of its stockholders. 23 The interpretation adopted by the lower courts is contrary to the purpose of Section 69 of PD 463. Such intent to limit, without qualification, the area of a quarry license strictly to 100 hectares in any one province is shown by the opening proviso that reads: Notwithstanding the provisions of Section 14 hereof . . . The mandatory nature of the provision is also underscored by the use of the word shall. Hence, in the application of the 100-hectare-per-province limit, no regard is given to the size or the number of mining claims under Section 14, which we quote: "SECTION 14.Size of Mining Claim. For purposes of registration of a mining claim under this Decree, the Philippine territory and its shelf are hereby divided into meridional blocks or quadrangles of onehalf minute (1/2) of latitude and longitude, each block or quadrangle containing area of eighty-one (81) hectares, more or less. "A mining claim shall cover one such block although a lesser area may be allowed if warranted by attendant circumstances, such as geographical and other justifiable considerations as may be determined by the Director: Provided, That in no case shall the locator be allowed to register twice the area allowed for lease under Section 43 hereof." (Italics supplied) Clearly, the intent of the law would be brazenly circumvented by ruling that a license may cover an area exceeding the maximum by the mere expediency of filing several applications. Such ruling would indirectly permit an act that is directly prohibited by the law.

Second Issue: Validity of Proclamation No. 84

Petitioners also argue that the license was validly declared a nullity and consequently withdrawn or terminated. In a letter dated September 15, 1986, respondents were informed by then Minister Ernesto M. Maceda that their license had illegally been issued, because it violated Section 69 of PD 463; and that there was no more public interest served by the continued existence or renewal of the license. The latter reason, they added, was confirmed by the language of Proclamation No. 84. According to this law, public interest would be served by reverting the parcel of land that was excluded by Proclamation No. 2204 to the former status of that land as part of the Biak-na-Bato national Park. They also contend that Section 74 of PD 463 would not apply, because Minister Macedas letter did not cancel or revoke QLP No. 33, but merely declared the latters nullity. They further argue that respondents waived notice and hearing in their application for the license. On the other hand, respondents submit that, as provided for in Section 74 of PD 463, their right to due process was violated when their license was cancelled without notice and hearing. They likewise contend that Proclamation No. 84 is not valid for the following reasons: 1) it violates the clause on the non-impairment of contracts; 2) it is an ex post factolaw and/or a bill of attainder; and 3) it was issued by the President after the effectivity of the 1987 Constitution. This Court ruled on the nature of a natural resource exploration permit, which was akin to the present respondents license, in Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining Cooperative , 24 which held: ". . . As correctly held by the Court of Appeals in its challenged decision, EP No. 133 merely evidences a privilege granted by the State, which may be amended, modified or rescinded when the national interest so requires. This is necessarily so since the exploration, development and utilization of the countrys natural mineral resources are matters impressed with great public interest. Like timber permits, mining exploration permits do not vest in the grantee any permanent or irrevocable right within the purview of the non-impairment of contract and due process clauses of the Constitution, since the State, under its all-encompassing police power, may alter, modify or amend the same, in accordance with the demands of the general welfare." 25

This same ruling had been made earlier in Tan v. Director of Forestry 26 with regard to a timber license, a pronouncement that was reiterated in Ysmael v. Deputy Executive Secretary, 27 the pertinent portion of which reads: ". . . Timber licenses, permits and license agreements are the principal instruments by which the State

regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA
302]." 28 (Italics supplied) In line with the foregoing jurisprudence, respondents' license may be revoked or rescinded by executive action when the national interest so requires, because it is not a contract, property or a property right protected by the due process clause of the Constitution. 29 Respondents themselves acknowledge this condition of the grant under paragraph 7 of QLP No. 33, which we quote: "7.This permit/license may be revoked or cancelled at any time by the Director of Mines and GeoSciences when, in his opinion public interests so require or, upon failure of the permittee/licensee to comply with the provisions of Presidential Decree No. 463, as amended, and the rules and regulations promulgated thereunder, as well as with the terms and conditions specified herein; Provided, That if a permit/license is cancelled, or otherwise terminated, the permittee/licensee shall be liable for all unpaid rentals and royalties due up to the time of the termination or cancellation of the permit/license[.]" 30 (Italics supplied) The determination of what is in the public interest is necessarily vested in the State as owner of all mineral resources. That determination was based on policy considerations formally enunciated in the letter dated September 15, 1986,

issued by then Minister Maceda and, subsequently, by the President through Proclamation No. 84. As to the exercise of prerogative by Maceda, suffice it to say that while the cancellation or revocation of the license is vested in the director of mines and geo-sciences, the latter is subject to the former's control as the department head. We also stress the clear prerogative of the Executive Department in the evaluation and the consequent cancellation of licenses in the process of its formulation of policies with regard to their utilization. Courts will not interfere with the exercise of that discretion without any clear showing of grave abuse of discretion. 31 Moreover, granting that respondents' license is valid, it can still be validly revoked by the State in the exercise of police power. 32 The exercise of such power through Proclamation No. 84 is clearly in accord with jura regalia, which reserves to the State ownership of all natural resources. 33 This Regalian doctrine is an exercise of its sovereign power as owner of lands of the public domain and of the patrimony of the nation, the mineral deposits of which are a valuable asset. 34 Proclamation No. 84 cannot be stigmatized as a violation of the non-impairment clause. As pointed out earlier, respondents' license is not a contract to which the protection accorded by the non-impairment clause may extend. 35Even if the license were, it is settled that provisions of existing laws and a reservation of police power are deemed read into it, because it concerns a subject impressed with public welfare. 36 As it is, the non-impairment clause must yield to the police power of the state. 37 We cannot sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a "legislative act which inflicts punishment without judicial trial." 38 Its declaration that QLP No. 33 is a patent nullity 39 is certainly not a declaration of guilt. Neither is the cancellation of the license a punishment within the purview of the constitutional proscription against bills of attainder. Too, there is no merit in the argument that the proclamation is an ex post facto law. There are six recognized instances when a law is considered as such: 1) it criminalizes and punishes an action that was done before the passing of the law and that was innocent when it was done; 2) it aggravates a crime or makes it greater than it was when it was committed; 3) it changes the punishment and inflicts one that is greater than that imposed by the law annexed to the crime when it was committed; 4) it alters the legal rules of evidence and authorizes conviction upon a less or different testimony than that required by the law at the time of the commission of the offense; 5) it assumes the regulation of civil rights and remedies only, but in effect imposes a penalty or a deprivation of a right as a consequence of something that was considered lawful when it was done; and 6) it deprives a person accused of a crime of some lawful protection to which he or she become entitled, such as the protection of a former conviction or an acquittal or the proclamation of an amnesty. 40 Proclamation No. 84 does not fall under any of the enumerated categories; hence, it is not an ex post facto law. ITcCaS It is settled that an ex post facto law is limited in its scope only to matters criminal in nature. 41 Proclamation 84, which merely restored the area excluded from the Biak-na-Bato national park by canceling respondents' license, is clearly not penal in character. Finally, it is stressed that at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she was still validly exercising legislative powers under the Provisional Constitution of 1986. 42 Section 1 of Article II of Proclamation No. 3, which promulgated the Provisional Constitution, granted her legislative power "until a legislature is elected and convened under a new Constitution." The grant of such power is also explicitly recognized and provided for in Section 6 of Article XVII of the 1987 Constitution. 43 WHEREFORE, this Petition is hereby GRANTED and the appealed Decision of the Court of Appeals SET ASIDE. No costs. SO ORDERED.

Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.

EN BANC [G.R. No. 157036. June 9, 2004.]

FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP, ET. AL., respondents.

DECISION

SANDOVAL-GUTIERREZ, J p: The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of peace and order 1and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties. Before us is a petition for prohibition and injunction seeking to enjoin the implementation of the "Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence " 2 (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the Philippine National Police (PNP). The facts are undisputed: In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus: "THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF JUSTICE. THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.

THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE .
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLE'S ASPIRATIONS FOR PEACE." Acting on President Arroyo's directive, respondent Ebdane issued the assailed Guidelines quoted as follows: "TO:All Concerned FROM:Chief, PNP SUBJECT:Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence. DATE:January 31, 2003

1.Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations. 2.General: The possession and carrying of firearms outside of residence is a privilege granted by the State to its citizens for their individual protection against all threats of lawlessness and security. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or MR) are prohibited from carrying their firearms outside of residence. However, the Chief, Philippine National Police may, in meritorious cases as determined by him and under conditions as he may impose, authorize such person or persons to carry firearms outside of residence. 3.Purposes: This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of firearms outside of residence as provided for in the Implementing Rules and Regulations, Presidential Decree No.1866, dated June 29, 1983 and as directed by PGMA . It also prescribes the conditions, requirements and procedures under which exemption from the ban may be granted. 4.Specific Instructions on the Ban on the Carrying of Firearms: a.All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid

PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed. firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees .

b.All holders of licensed or government firearms are hereby prohibited from carrying their

5.The following persons may be authorized to carry firearms outside of residence . a.All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger. b.All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days. c.All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration. d.Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person. e.Authorized members of the Diplomatic Corps. 6.Requirements for issuance of new PTCFOR: a.Written request by the applicant addressed to Chief, PNP stating his qualification to possess firearm and the reasons why he needs to carry firearm outside of residence.

b.Xerox copy of current firearm license duly authenticated by Records Branch, FED; c.Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or City Directors and duly validated by C, RIID; d.Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied; e.Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied; f.Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied; g.Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, Operations Branch, FED; h.NBI Clearance; i.Two (2) ID pictures (2" x 2") taken not earlier than one (1) year from date of filing of application; and j.Proof of Payment 7.Procedures: a.Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In the provinces, the applications may also be submitted to the Police Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the office of the PTCFOR Secretariat. The processors, after ascertaining that the documentary requirements are in order, shall issue the Order of Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay the fees to the Land Bank. b.Applications, which are duly processed and prepared in accordance with existing rules and regulations, shall be forwarded to the OCPNP for approval. c.Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date of issue. d.Applications for renewal of PTCFOR shall be processed in accordance with the provisions of par. 6 above. e.Application for possession and carrying of firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP Memo dated September 25, 2000, with Subj: Possession and Carrying of Firearms by Diplomats in the Philippines. 8.Restrictions in the Carrying of Firearms: a.The firearm must not be displayed or exposed to public view, except those authorized in uniform and in the performance of their official duties. b.The firearm shall not be brought inside public drinking and amusement places, and all other commercial or public establishments." Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, requested the Department of Interior and Local Government (DILG) to reconsider the implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G.

Romulo, as Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives Division. He anchored his petition on the following grounds: "I

THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH TO ALTER,

MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES. II OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN; THE PRESIDENT'S VERBAL DECLARATION ON GUN BAN VIOLATED THE PEOPLE'S RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS. III THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED GUIDELINES BECAUSE: 1)THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES. 2)THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES. 3)THE PRESIDENT'S SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF IMPLEMENTING GUIDELINES ON THE GUN BAN. IHcSCA IV ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO ISSUE THE SAME BECAUSE 1)PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ AND THE DILG. 2)SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF THE PHILIPPINE CONSTABULARY.

V THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION BECAUSE: 1)THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH THE PEOPLE'S INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR: A)THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF. B)THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE.

2)THE OWNERSHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST CAUSE. VI ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNECESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS. VII THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR. VIII THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY, AND NPA) UNTOUCHED. IX THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED. X THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION." Petitioner's submissions may be synthesized into five (5) major issues:

First, whether respondent Ebdane is authorized to issue the assailed Guidelines; Second, whether the citizens' right to bear arms is a constitutional right?; Third, whether the revocation of petitioner's PTCFOR pursuant to the assailed Guidelines is a violation
of his right to property?;

Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of courts. Nonetheless, in refutation of petitioner's arguments, he contends that: (1) the PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law. Initially, we must resolve the procedural barrier.

On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not an iron-clad dictum. In several instances where this Court was confronted with cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of the cases. 3 The case at bar is of similar import as it involves the citizens' right to bear arms. I

Authority of the PNP Chief


Relying on the principle of separation of powers, petitioner argues that only Congress can withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane transgressed the settled principle and arrogated upon themselves a power they do not possess the legislative power. We are not persuaded. It is true that under our constitutional system, the powers of government are distributed among three coordinate and substantially independent departments: the legislative, the executive and the judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within its own sphere. 4 Pertinently, the power to make laws the legislative power is vested in Congress. 5 Congress may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that "delegata potestas non potest delegari" "delegated power may not be delegated." 6

The rule which forbids the delegation of legislative power, however, is not absolute and inflexible . It admits of exceptions.
An exception sanctioned by immemorial practice permits the legislative body to delegate its licensing power to certain persons, municipal corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and directors. 7 Such licensing power includes the power to promulgate necessary rules and regulations. 8

The evolution of our laws on firearms shows that since the early days of our Republic, the legislature's tendency was always towards the delegation of power. Act No. 1780, 9 delegated upon the Governor-General (now the President) the authority (1) to approve or disapprove applications of any person for a license to deal in firearms or to possess the same for personal protection, hunting and other lawful purposes; and (2) to revoke such license any time. 10 Further, it authorized him to issue regulations which he may deem necessary for the proper enforcement of the Act. 11 With the enactment of Act No. 2711, the "Revised Administrative Code of 1917," the laws on firearms were integrated. 12 The Act retained the authority of the Governor General provided in Act No. 1780. Subsequently, the growing complexity in the Office of the Governor-General resulted in the delegation of his authority to the Chief of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater issued Executive Order No. 8 13 authorizing and directing the Chief of Constabulary to act on his behalf in approving and disapproving applications for personal, special and hunting licenses. This was followed by Executive Order No. 61 14 designating the Philippine Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives. Executive Order No. 215, 15 issued by President Diosdado Macapagal on December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove applications for personal, special and hunting license, but also the authority to revoke the same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866 16 perpetuate such authority of the Chief of the Constabulary. Section 2 specifically provides that any person or entity desiring to possess any firearm "shall first secure the necessary permit/license/authority from the Chief of the Constabulary." With regard to the issuance of PTCFOR, Section 3 imparts: " The Chief of Constabulary may, in meritorious

cases as determined by him and under such conditions as he may impose, authorize lawful holders of firearms to carry them outside of residence." These provisions are issued pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations for the effective implementation of the decree . 17At this
juncture, it bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his legislative power. 18

In an attempt to evade the application of the above-mentioned laws and regulations, petitioner argues that the "Chief of the PNP" is not the same as the "Chief of the Constabulary," the PC being a mere unit or component of the newly established PNP. He contends further that Republic Act No. 8294 19 amended P.D. No. 1866 such that the authority to

issue rules and regulations regarding firearms is now jointly vested in the Department of Justice and the DILG, not the Chief of the Constabulary. 20 Petitioner's submission is bereft of merit. By virtue of Republic Act No. 6975, 21 the Philippine National Police (PNP) absorbed the Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latter's licensing authority. Section 24 thereof specifies, as one of PNP's powers, the issuance of licenses for the possession of firearms and explosives in accordance with law. 22 This is in conjunction with the PNP Chief's "power to issue detailed implementing policies and instructions" on such "matters as may be necessary to effectively carry out the functions, powers and duties" of the PNP. 23 Contrary to petitioner's contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue rules and regulations regarding firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and reintegration of the convicts into the community.

Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed guidelines. Corollarily, petitioner disputes President Arroyo's declaration of a nationwide gun ban, arguing that "she has no authority to alter, modify, or amend the law on firearms through a mere speech."

First, it must be emphasized that President Arroyo's speech was just an expression of her policy and a directive to her
subordinate. It cannot, therefore, be argued that President Arroyo enacted a law through a mere speech.

Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the Constitution specifies his power as Chief Executive, thus: "The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed." As Chief Executive, President Arroyo holds the steering

wheel that controls the course of her government. She lays down policies in the execution of her plans and programs. Whatever policy she chooses, she has her subordinates to implement them. In short, she has the power of control. Whenever a specific function is entrusted by law or regulation to her subordinate, she may act directly or merely direct the performance of a duty. 24 Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well within the prerogative of her office. II

Right to bear arms: Constitutional or Statutory?


Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right. This, he mainly anchors on various American authorities. We therefore find it imperative to determine the nature of the right in light of American jurisprudence. The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not only the American Constitution but also the discovery of firearms. 25 A provision commonly invoked by the American people to justify their possession of firearms is the Second Amendment of the Constitution of the United States of America, which reads: "A well regulated militia, being necessary for the security of free state, the right of the people to keep and bear Arms, shall not be infringed."

An examination of the historical background of the foregoing provision shows that it pertains to the citizens' "collective right" to take arms in defense of the State, not to the citizens' "individual right" to own and possess arms. The setting under which the right was contemplated has a profound connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the right was construed is evident in early American cases. The first case involving the interpretation of the Second Amendment that reached the United States Supreme Court isUnited States vs. Miller. 26 Here, the indictment charged the defendants with transporting an unregistered "Stevens shotgun" without the required stamped written order, contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the indictment on the ground that the National Firearms Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal,

the Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the collective right of those comprising the Militia a body of citizens enrolled for military discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation

or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is
any part of the ordinary military equipment or that its use could contribute to the common defense.

The same doctrine was re-echoed in Cases vs. United States. 27 Here, the Circuit Court of Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second Amendment. It ruled that: "While [appellant's] weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still

there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second amendment was designed to foster as necessary to the security of a free state."

With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the American people the right to bear arms. In a more explicit language, the United States vs. Cruikshank 28 decreed: "The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument ." Likewise, in People vs. Persce, 29 the Court of Appeals said: "Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state ." With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as we aptly observed in the early case of United States vs. Villareal: 30 "The only contention of counsel which would appear to necessitate comment is the claim that the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of Rights.

Counsel does not expressly rely upon the prohibition in the United States Constitution against the infringement of the right of the people of the United States to keep and bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it may be well, in passing, to point out that in no event could this constitutional guaranty have any bearing on the case at bar, not only because it has not been expressly extended to the Philippine Islands, but also because it has been uniformly held that both this and similar provisions in State constitutions apply only to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); . . .."

Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule . The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation. What then are the laws that grant such right to the Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12,
1907. It was passed to regulate the importation, acquisition, possession, use and transfer of firearms.Section 9 thereof provides: "SECTION 9.Any person desiring to possess one or more firearms for personal protection, or for use in

hunting or other lawful purposes only, and ammunition therefor, shall make application for a license to possess such firearm or firearms or ammunition as hereinafter provided . Upon making such application,
and before receiving the license, the applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in such form as the Governor-General may prescribe, payable to the Government of the Philippine Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly formed and organized at the time of the passage of this Act, who at such time have a license to possess firearms, shall not be required to make the deposit or give the bond prescribed by this section, and the bond duly executed by such person in accordance with existing law shall continue to be security for the safekeeping of such arms."

The foregoing provision was restated in Section 887 31 of Act No. 2711 that integrated the firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear arms cannot be considered an inalienable or absolute right. III

Vested Property Right


Section 1, Article III of the Constitution provides that "no person shall be deprived of life, liberty or property without due process of law." Petitioner invokes this provision, asserting that the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his "vested property right" without due process of law and in violation of the equal protection of law. Petitioner cannot find solace to the above-quoted Constitutional provision. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or property interest exists. 32 The bulk of jurisprudence is that a license authorizing a person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry, 33 we ruled that "a license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right ." In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr. 34 that:

"Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution." Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on Bell vs. Burson 35wherein the U.S. Supreme Court ruled that "once a license is issued, continued possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus involves state action that adjudicates important interest of the licensees." Petitioner's reliance on Bell is misplaced. This case involves a driver's license, not a license to bear arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. O'Brien, 36 the plaintiff who was denied a license to carry a firearm brought suit against the defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that the denial violated her constitutional rights to due process and equal protection of the laws. The United States Court of Appeals

Ninth Circuit ruled that Erdelyi did not have a property interest in obtaining a license to carry a firearm, ratiocinating as follows: "Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise whenever a person has only 'an abstract need or desire for', or 'unilateral expectation of a benefit. . . . Rather, they arise from 'legitimate claims of entitlement . . . defined by existing rules or understanding that stem from an independent source, such as state law. . . . Concealed weapons are closely regulated by the State of California. . . . Whether the statute creates a

property interest in concealed weapons licenses depends 'largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [issuing authority] to deny licenses to applicants who claim to meet the minimum eligibility requirements. . . . Where state law gives the issuing authority broad discretion to grant or deny license application in a closely regulated field, initial applicants do not have a property right in such licenses protected by the Fourteenth Amendment . See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);"
Similar doctrine was announced in Potts vs. City of Philadelphia, 37 Conway vs. King, 38 Nichols vs. County of Sta. Clara,39 and Gross vs. Norton. 40 These cases enunciated that the test whether the statute creates a property right or interest depends largely on the extent of discretion granted to the issuing authority. In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that "the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose , authorize lawful holders of firearms to carry them outside of residence." Following the American doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under our Constitution. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed. 41 A licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it might be revoked by the selectmen at their pleasure . Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these words in the Declaration of Rights. 42 The US Supreme Court, inDoyle vs. Continental Ins. Co, 43 held: "The correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by the State is always revocable." The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The Government of the Philippine Islands vs. Amechazurra 44 we ruled: ". . . no private person is bound to keep arms. Whether he does or not is entirely optional with himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so upon such terms as the Government sees fit to impose, for the right to keep and bear arms is not secured to him by law. The Government can impose upon him such terms as it pleases. If he is not satisfied with the terms imposed, he should decline to accept them, but, if for the purpose of securing possession of the arms he does agree to such conditions, he must fulfill them." IV

Police Power
At any rate, assuming that petitioner's PTCFOR constitutes a property right protected by the Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the State's police power. All property in the state is held subject to its general regulations, necessary to the common good and general welfare. In a number of cases, we laid down the test to determine the validity of a police measure, thus: (1)The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power; and

(2)The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Deeper reflection will reveal that the test merely reiterates the essence of the constitutional guarantees of substantive due process, equal protection, and non-impairment of property rights. It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and order in the society. Owing to the proliferation of crimes, particularly those committed by the New People's Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed it best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the assailed Guidelines is the interest of the public in general. CDAcIT The only question that can then arise is whether the means employed are appropriate and reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What they proscribe is merely the carrying of firearms outside of residence. However, those who wish to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not wait in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for criminals to roam around with their guns. On the other hand, it would be easier for the PNP to apprehend them. Notably, laws regulating the acquisition or possession of guns have frequently been upheld as reasonable exercise of the police power. 45 In State vs. Reams, 46 it was held that the legislature may regulate the right to bear arms in a manner conducive to the public peace. With the promotion of public peace as its objective and the revocation of all PTCFOR as the means, we are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling in United States vs. Villareal, 47 is relevant, thus: "We think there can be no question as to the reasonableness of a statutory regulation prohibiting the carrying of concealed weapons as a police measure well calculated to restrict the too frequent resort to such weapons in moments of anger and excitement. We do not doubt that the strict enforcement of such a regulation would tend to increase the security of life and limb, and to suppress crime and lawlessness, in any community wherein the practice of carrying concealed weapons prevails, and this without being unduly oppressive upon the individual owners of these weapons. It follows that its enactment by the legislature is a proper and legitimate exercise of the police power of the state." V

Ex post facto law


In Mekin vs. Wolfe, 48 an ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. We see no reason to devote much discussion on the matter. Ex post facto law prohibits retrospectivity of penal laws. 49The assailed Guidelines cannot be considered as an ex post facto law because it is prospective in its application. Contrary to petitioner's argument, it would not result in the punishment of acts previously committed. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ ., concur.

EN BANC [G.R. No. 158793. June 8, 2006.] JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS FEDERATION, INC.,petitioners, vs. DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and TOLL REGULATORY BOARD, respondents.

DECISION

CARPIO, J p: This petition for review on certiorari 1 seeks to reverse the Decision dated 10 March 2003 of the Regional Trial Court, Branch 147, Makati City (RTC) in Civil Case No. 01-034, as well as the RTC's Order dated 16 June 2003 which denied petitioners' Motion for Reconsideration. Petitioners assert that Department of Public Works and Highways' (DPWH) Department Order No. 74 (DO 74), Department Order No. 215 (DO 215), and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board (TRB) violate Republic Act No. 2000 (RA 2000) or the Limited Access Highway Act. Petitioners also seek to declare Department Order No. 123 (DO 123) and Administrative Order No. 1 (AO 1) 2 unconstitutional. Antecedent Facts The facts are not in dispute. As summarized by the Solicitor General, the facts are as follows: 1.On January 10, 2001, petitioners filed before the trial court a Petition for Declaratory Judgment with Application for Temporary Restraining Order and Injunction docketed as Civil Case No. 01-034. The petition sought the declaration of nullity of the following administrative issuances for being inconsistent with the provisions of Republic Act 2000, entitled "Limited Access Highway Act" enacted in 1957: a.DPWH Administrative Order No. 1, Series of 1968; b.DPWH Department Order No. 74, Series of 1993; c.Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated in 199[8] by the DPWH thru the Toll Regulatory Board (TRB). 2.Previously, pursuant to its mandate under R.A. 2000, DPWH issued on June 25, 1998 Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll Expressway as limited access facilities. 3.Accordingly, petitioners filed an Amended Petition on February 8, 2001 wherein petitioners sought the declaration of nullity of the aforesaid administrative issuances. Moreover, petitioners prayed for the issuance of a temporary restraining order and/or preliminary injunction to prevent the enforcement of the total ban on motorcycles along the entire breadth of North and South Luzon Expressways and the Manila-Cavite (Coastal Road) Toll Expressway under DO 215. 4.On June 28, 2001, the trial court, thru then Presiding Judge Teofilo Guadiz, after due hearing, issued an order granting petitioners' application for preliminary injunction. On July 16, 2001, a writ of preliminary injunction was issued by the trial court, conditioned upon petitioners' filing of cash bond in the amount of P100,000.00, which petitioners subsequently complied with.

5.On July 18, 2001, the DPWH acting thru the TRB, issued Department Order No. 123 allowing motorcycles with engine displacement of 400 cubic centimeters inside limited access facilities (toll ways). 6.Upon the assumption of Honorable Presiding Judge Ma. Cristina Cornejo, both the petitioners and respondents were required to file their respective Memoranda. Petitioners likewise filed [their] Supplemental Memorandum. Thereafter, the case was deemed submitted for decision. 7.Consequently, on March 10, 2003, the trial court issued the assailed decision dismissing the petition but declaring invalid DO 123. Petitioners moved for a reconsideration of the dismissal of their petition; but it was denied by the trial court in its Order dated June 16, 2003. 3 Hence, this petition. The RTC's Ruling The dispositive portion of the RTC's Decision dated 10 March 2003 reads: WHEREFORE, [t]he Petition is denied/dismissed insofar as petitioners seek to declare null and void ab initioDPWH Department Order No. 74, Series of 1993, Administrative Order No. 1, and Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated by the DPWH thru the TRB, the presumed validity thereof not having been overcome; but the petition is granted insofar as DPWH Department Order No. 123 is concerned, declaring the same to be invalid for being violative of the equal protection clause of the Constitution. SO ORDERED. 4 The Issues Petitioners seek a reversal and raise the following issues for resolution: 1.WHETHER THE RTC'S DECISION IS ALREADY BARRED BY RES JUDICATA; 2.WHETHER DO 74, DO 215 AND THE TRB REGULATIONS CONTRAVENE RA 2000; AND CIETDc 3.WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL. 5 The Ruling of the Court The petition is partly meritorious.

Whether the RTC's Decision Dismissing Petitioners' Case is Barred by Res Judicata
Petitioners rely on the RTC's Order dated 28 June 2001, which granted their prayer for a writ of preliminary injunction. Since respondents did not appeal from that Order, petitioners argue that the Order became "a final judgment" on the issues. Petitioners conclude that the RTC erred when it subsequently dismissed their petition in its Decision dated 10 March 2003. Petitioners are mistaken. As the RTC correctly stated, the Order dated 28 June 2001 was not an adjudication on the merits of the case that would trigger res judicata. A preliminary injunction does not serve as a final determination of the issues. It is a provisional remedy, which merely serves to preserve the status quo until the court could hear the merits of the case. 6 Thus, Section 9 of Rule 58 of the 1997 Rules of Civil Procedure requires the issuance of a final injunction to confirm the preliminary injunction should the court during trial determine that the acts complained of deserve to be permanently enjoined. A preliminary injunction is a mere adjunct, an ancillary remedy which exists only as an incident of the main proceeding. 7

Validity of DO 74, DO 215 and the TRB Regulations


Petitioners claim that DO 74, 8 DO 215, 9 and the TRB's Rules and Regulations issued under them violate the provisions of RA 2000. They contend that the two issuances unduly expanded the power of the DPWH in Section 4 of RA 2000 to regulate toll ways. Petitioners assert that the DPWH's regulatory authority is limited to acts like redesigning curbings or central dividing sections. They claim that the DPWH is only allowed to re-design the physical structure of toll ways, and not to determine "who or what can be qualified as toll way users." 10 Section 4 of RA 2000 11 reads: SEC. 4.Design of limited access facility. The Department of Public Works and Communications is authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended ; and its determination of such design shall be final. In this connection, it is authorized to divide and separate any limited access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes and other devices. No person, shall have any right of ingress or egress to, from or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time. (Emphasis supplied) On 19 February 1968, Secretary Antonio V. Raquiza of the Department of Public Works and Communicationsissued AO 1, which, among others, prohibited motorcycles on limited access highways. The pertinent provisions of AO 1 read: SUBJECT:Revised Rules and Regulations Governing Limited Access Highways By virtue of the authority granted the Secretary [of] Public Works and Communications under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following rules and regulations governing limited access highways are hereby promulgated for the guidance of all concerned: xxx xxx xxx Section 3 On limited access highways, it is unlawful for any person or group of persons to: xxx xxx xxx (h)Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized); xxx xxx xxx 12 (Emphasis supplied) On 5 April 1993, Acting Secretary Edmundo V. Mir of the Department of Public Works and Highways issued DO 74: SUBJECT:Declaration of the North Luzon Expressway from Balintawak to Tabang and the South Luzon Expressway from Nichols to Alabang as Limited Access Facilities Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their proper[t]y abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other

commerical [sic] vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic." Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities." Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the Balintawak to Tabang Sections of the North Luzon Expressway, and the Nichols to Alabang Sections of the South Luzon Expressways, to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB).

In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the purpose of assuring the continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB. This Order shall take effect immediately. 13 On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar issued DO 215: SUBJECT:Declaration of the R-1 Expressway, from Seaside drive to Zapote, C-5 Link Expressway, from Zapote to Noveleta, of the Manila Cavite Toll Expressway as Limited Access Facility. Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic." Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities." Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the R-1 Expressway, C-5 Link Expressway and the R-1 Extension Expressway Sections of the Manila Cavite Toll Expressway to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB). In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the purpose of assuring the

continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB. This Order shall take effect immediately. 14 The RTC held that Section 4 of RA 2000 expressly authorized the DPWH to design limited access facilities and to regulate, restrict, or prohibit access as to serve the traffic for which such facilities are intended. According to the RTC, such authority to regulate, restrict, or prohibit logically includes the determination of who and what can and cannot be permitted entry or access into the limited access facilities. Thus, the RTC concluded that AO 1, DO 74, and the Revised Rules and Regulations on Limited Access Facilities, which ban motorcycles' entry or access to the limited access facilities, are not inconsistent with RA 2000. ESDHCa RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22 June 1957. Section 4 of RA 2000 provides that "[t]he Department of Public Works and Communications is authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended." The RTC construed this authorization to regulate, restrict, or prohibit access to limited access facilities to apply to the Department of Public Works and Highways (DPWH). The RTC's ruling is based on a wrong premise. The RTC assumed that the DPWH derived its authority from its predecessor, the Department of Public Works and Communications, which is expressly authorized to regulate, restrict, or prohibit access to limited access facilities under Section 4 of RA 2000. However, such assumption fails to consider the evolution of the Department of Public Works and Communications. Under Act No. 2711, otherwise known as the Revised Administrative Code, approved on 10 March 1917, there were only seven executive departments, namely: the Department of the Interior, the Department of Finance, the Department of Justice, the Department of Agriculture and Commerce, the Department of Public Works and Communications , the Department of Public Instruction, and the Department of Labor. 15 On 20 June 1964, Republic Act No. 4136 16created the Land Transportation Commission under the Department of Public Works and Communications. Later, the Department of Public Works and Communications was restructured into the Department of Public Works, Transportation and Communications. On 16 May 1974, Presidential Decree No. 458 (PD 458) separated the Bureau of Public Highways from the Department of Public Works, Transportation and Communications and created it as a department to be known as Department of Public Highways. Under Section 3 of PD 458, the Department of Public Highways is "responsible for developing and implementing programs on the construction and maintenance of roads, bridges and airport runways." With the amendment of the 1973 Philippine Constitution in 1976, resulting in the shift in the form of government, national agencies were renamed from Departments to Ministries. Thus, the Department of Public Works, Transportation and Communications became the Ministry of Public Works, Transportation and Communications. On 23 July 1979, then President Ferdinand E. Marcos issued Executive Order No. 546 (EO 546), creating a Ministry of Public Works and a Ministry of Transportation and Communications . 17 Under Section 1 of EO 546, theMinistry of Public Works assumed the public works functions of the Ministry of Public Works, Transportation and Communications. The functions of the Ministry of Public Works were the "construction, maintenance and repair of port works, harbor facilities, lighthouses, navigational aids, shore protection works, airport buildings and associated facilities, public buildings and school buildings, monuments and other related structures, as well as undertaking harbor and river dredging works, reclamation of foreshore and swampland areas, water supply, and flood control and drainage works." 18 On the other hand, the Ministry of Transportation and Communications became the "primary policy, planning, programming, coordinating, implementing, regulating and administrative entity of the executive branch of the government in the promotion, development, and regulation of a dependable and coordinated network of transportation and communication systems." 19 The functions of the Ministry of Transportation and Communications were: a.Coordinate and supervise all activities of the Ministry relative to transportation and communications;

b.Formulate and recommend national policies and guidelines for the preparation and implementation of an integrated and comprehensive transportation and communications system at the national, regional and local levels; c.Establish and administer comprehensive and integrated programs for transportation and communication, and for this purpose, may call on any agency, corporation, or organization, whether government or private, whose development programs include transportation and communications as an integral part to participate and assist in the preparation and implementation of such programs; d.Regulate, whenever necessary, activities relative to transportation and communications and prescribe and collect fees in the exercise of such power; e.Assess, review and provide direction to transportation and communications research and development programs of the government in coordination with other institutions concerned; and f.Perform such other functions as may be necessary to carry into effect the provisions of this Executive Order. 20 (Emphasis supplied) On 27 July 1981, then President Marcos issued Executive Order No. 710 (EO 710), which merged the Ministry of Public Works and the Ministry of Public Highways for "greater simplicity and economy in operations." 21 The restructured agency became known as the Ministry of Public Works and Highways. Under Section 1 of EO 710 the functions of the Ministry of Public Works and the Ministry of Public Highways 22 were transferred to the Ministry of Public Works and Highways. Upon the ratification of the 1987 Constitution in February 1987, the former Ministry of Public Works and Highways became the Department of Public Works and Highways (DPWH) and the former Ministry of Transportation and Communications became the Department of Transportation and Communications (DOTC). DPWH issued DO 74 and DO 215 declaring certain expressways as limited access facilities on 5 April 1993 and 25 June 1998, respectively. Later, the TRB, under the DPWH, issued the Revised Rules and Regulations on Limited Access Facilities. However, on 23 July 1979, long before these department orders and regulations were issued, the Ministry of Public Works, Transportation and Communications was divided into two agencies the Ministry of Public Works and the Ministry of Transportation and Communications by virtue of EO 546. The question is, which of these two agencies is now authorized to regulate, restrict, or prohibit access to limited access facilities? 23 Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed the public works functions of theMinistry of Public Works, Transportation and Communications. On the other hand, among the functions of theMinistry of Transportation and Communications (now Department of Transportation and Communications [DOTC]) were to (1) formulate and recommend national policies and guidelines for the preparation and implementation of an integrated and comprehensive transportation and communications systems at the national, regional, and local levels; and (2) regulate, whenever necessary, activities relative to transportation and communications and prescribe and collect fees in the exercise of such power. Clearly, under EO 546, it is the DOTC, not the DPWH, which has authority to regulate, restrict, or prohibit access to limited access facilities .

Even under Executive Order No. 125 (EO 125) 24 and Executive Order No. 125-A (EO 125-A), 25 which further reorganized the DOTC, the authority to administer and enforce all laws, rules and regulations relative to transportation is clearly with the DOTC. 26 Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare certain expressways as limited access facilities. Under the law, it is the DOTC which is authorized to administer and enforce all laws, rules and regulations in the field of transportation and to regulate related activities. Since the DPWH has no authority to regulate activities relative to transportation, the TRB 27 cannot derive its power from the DPWH to issue regulations governing limited access facilities. The DPWH cannot delegate a power or function which it

does not possess in the first place. Since DO 74 and DO 215 are void, it follows that the rules implementing them are likewise void.

Whether AO 1 and DO 123 are Unconstitutional


DPWH Secretary Simeon A. Datumanong issued DO 123 on 18 July 2001. DO 123 reads in part: SUBJECT:Revised Rules and Regulations Governing Limited Access Highways By virtue of the authority granted the Secretary of Public Works and Highways under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act , the following revised rules and regulations governing limited access highways are hereby promulgated for the guidance of all concerned: 1.Administrative Order No. 1 dated February 19, 1968, issued by the Secretary of the then Department of Public Works and Communications, is hereby amended by deleting the word "motorcycles" mentioned in Section 3(h) thereof. Therefore, motorcycles are hereby allowed to operate inside the toll roads and limited access highways, subject to the following: a.Motorcycles shall have an engine displacement of at least 400 cubic centimeters (cc) provided that: xxx xxx xxx 28 (Emphasis supplied) The RTC's Decision dated 10 March 2003 declared DO 123 unconstitutional on the ground that it violates the equal protection clause by allowing only motorcycles with at least 400 cubic centimeters engine displacement to use the toll ways. The RTC reasoned that the creation of a distinction within the class of motorcycles was not based on real differences. cTCEIS We need not pass upon the constitutionality of the classification of motorcycles under DO 123. As previously discussed, the DPWH has no authority to regulate limited access highways since EO 546 has devolved this function to the DOTC. Thus, DO 123 is void for want of authority of the DPWH to promulgate it. On the other hand, the assailed portion of AO 1 states: Section 3.On limited access highways, it is unlawful for any person or group of persons to: xxx xxx xxx (h)Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized); xxx xxx xxx Petitioners assail the DPWH's failure to provide "scientific" and "objective" data on the danger of having motorcycles plying our highways. They attack this exercise of police power as baseless and unwarranted. Petitioners belabor the fact that there are studies that provide proof that motorcycles are safe modes of transport. They also claim that AO 1 introduces an unreasonable classification by singling-out motorcycles from other motorized modes of transport. Finally, petitioners argue that AO 1 violates their right to travel. Petitioners' arguments do not convince us.

We emphasize that the Secretary of the Department of Public Works and Communications issued AO 1 on 19 February 1968. Section 3 of RA 2000 29 authorized the issuance of the guidelines. In contrast, DPWH issued DO 74, DO 215 and DO 123 after EO 546 devolved to the DOTC the authority to regulate limited access highways. We now discuss the constitutionality of AO 1. Administrative issuances have the force and effect of law. 30 They benefit from the same presumption of validity and constitutionality enjoyed by statutes. 31 These two precepts place a heavy burden upon any party assailing governmental regulations. The burden of proving unconstitutionality rests on such party. 32 The burden becomes heavier when the police power is at issue. The use of public highways by motor vehicles is subject to regulation as an exercise of the police power of the state. 33The police power is far-reaching in scope and is the "most essential, insistent and illimitable" of all government powers.34 The tendency is to extend rather than to restrict the use of police power. The sole standard in measuring its exercise is reasonableness. 35 What is "reasonable" is not subject to exact definition or scientific formulation. No allembracing test of reasonableness exists, 36 for its determination rests upon human judgment applied to the facts and circumstances of each particular case. 37 We find that AO 1 does not impose unreasonable restrictions. It merely outlines several precautionary measures, to which toll way users must adhere. These rules were designed to ensure public safety and the uninhibited flow of traffic within limited access facilities. They cover several subjects, from what lanes should be used by a certain vehicle, to maximum vehicle height. The prohibition of certain types of vehicles is but one of these. None of these rules violates reason. The purpose of these rules and the logic behind them are quite evident. A toll way is not an ordinary road. The special purpose for which a toll way is constructed necessitates the imposition of guidelines in the manner of its use and operation. Inevitably, such rules will restrict certain rights. But the mere fact that certain rights are restricted does not invalidate the rules. Consider Section 3(g) of AO 1, which prohibits the conduct of rallies inside toll ways. 38 The regulation affects the right to peaceably assemble. The exercise of police power involves restriction, restriction being implicit in the power itself. Thus, the test of constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it imposes a restriction on those rights. None of the rules outlined in AO 1 strikes us as arbitrary and capricious. The DPWH, through the Solicitor General, maintains that the toll ways were not designed to accommodate motorcycles and that their presence in the toll ways will compromise safety and traffic considerations. The DPWH points out that the same study the petitioners rely on cites that the inability of other drivers to detect motorcycles is the predominant cause of accidents. 39 Arguably, prohibiting the use of motorcycles in toll ways may not be the "best" measure to ensure the safety and comfort of those who ply the toll ways. However, the means by which the government chooses to act is not judged in terms of what is "best," rather, on simply whether the act is reasonable. The validity of a police power measure does not depend upon the absolute assurance that the purpose desired can in fact be probably fully accomplished, or upon the certainty that it will best serve the purpose intended. 40 Reason, not scientific exactitude, is the measure of the validity of the governmental regulation. Arguments based on what is "best" are arguments reserved for the Legislature's discussion. Judicial intervention in such matters will only be warranted if the assailed regulation is patently whimsical. We do not find the situation in this case to be so. Neither do we find AO 1 oppressive. Petitioners are not being deprived of their right to use the limited access facility. They are merely being required, just like the rest of the public, to adhere to the rules on how to use the facility. AO 1 does not infringe upon petitioners' right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any nonmotorized vehicles as the mode of traveling along limited access highways. 41 Several cheap, accessible and practical alternative modes of transport are open to petitioners. There is nothing oppressive in being required to take a bus or drive a car instead of one's scooter, bicycle, calesa, or motorcycle upon using a toll way. Petitioners' reliance on the studies they gathered is misplaced. Police power does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. The yardstick has always been simply whether the government's act is reasonable and not oppressive. 42 The use of "reason" in this sense is simply meant to guard against arbitrary and capricious government action. Scientific certainty and conclusiveness, though desirable, may not be demanded in every situation. Otherwise, no government will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies.

A police power measure may be assailed upon proof that it unduly violates constitutional limitations like due process and equal protection of the law. 43 Petitioners' attempt to seek redress from the motorcycle ban under the aegis of equal protection must fail. Petitioners' contention that AO 1 unreasonably singles out motorcycles is specious. To begin with, classification by itself is not prohibited. 44 A classification can only be assailed if it is deemed invidious, that is, it is not based on real or substantial differences. As explained by Chief Justice Fernando in Bautista v. Juinio: 45 . . . To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoked the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical is analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest.

We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable classification among modes of transport is the motorized against the non-motorized. Not all motorized vehicles are created equal. A 16wheeler truck is substantially different from other light vehicles. The first may be denied access to some roads where the latter are free to drive. Old vehicles may be reasonably differentiated from newer models. 46 We find that real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. Amongst all types of motorized transport, it is obvious, even to a child, that a motorcycle is quite different from a car, a bus or a truck. The most obvious and troubling difference would be that a two-wheeled vehicle is less stable and more easily overturned than a four-wheeled vehicle. A classification based on practical convenience and common knowledge is not unconstitutional simply because it may lack purely theoretical or scientific uniformity. Moreover, we take note that the Philippines is home to a host of unique motorized modes of transport ranging from modified hand-carts (kuliglig) to bicycle "sidecars" outfitted with a motor. To follow petitioners' argument to its logical conclusion would open up toll ways to all these contraptions. Both safety and traffic considerations militate against any ruling that would bring about such a nightmare. TEAICc Petitioners complain that the prohibition on the use of motorcycles in toll ways unduly deprive them of their right to travel. We are not persuaded. A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. Petitioners themselves admit that alternative routes are available to them. Their complaint is that these routes are not the safest and most convenient. Even if their claim is true, it hardly qualifies as an undue curtailment of their freedom of movement and travel. The right to travel does not entitle a person to the best form of transport or to the most convenient route to his destination. The obstructions found in normal streets, which petitioners complain of (i.e., potholes, manholes, construction barriers, etc.), are not suffered by them alone.

Finally, petitioners assert that their possession of a driver's license from the Land Transportation Office (LTO) and the fact that their vehicles are registered with that office entitle them to use all kinds of roads in the country. Again, petitioners are mistaken. There exists no absolute right to drive. On the contrary, this privilege, is heavily regulated. Only a qualified group is allowed to drive motor vehicles: those who pass the tests administered by the LTO. A driver's license issued by the LTO merely allows one to drive a particular mode of transport. It is not a license to drive or operate any form of transportation on any type of road. Vehicle registration in the LTO on the other hand merely signifies the roadworthiness of a vehicle. This does not preclude the government from prescribing which roads are accessible to certain vehicles. WHEREFORE, we PARTLY GRANT the petition. We MODIFY the Decision dated 10 March 2003 of the Regional Trial Court, Branch 147, Makati City and its Order dated 16 June 2003 in Civil Case No. 01-034. We declare VOID Department Order Nos. 74, 215, and 123 of the Department of Public Works and Highways, and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board. We declare VALID Administrative Order No. 1 of the Department of Public Works and Communications. SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr. andVelasco, Jr., JJ., concur. Ynares-Santiago, J., is on official leave. Azcuna and Chico-Nazario, JJ., join the dissent of Justice Tinga. Tinga, J., see dissenting opinion. Garcia, J., concurs of dissenting opinion

FIRST DIVISION [G.R. No. 77372. April 29, 1988.] LUPO L. LUPANGCO, RAYMOND S. MUNGKAL, NORMAN A. MESINA, ALEXANDER R. REGUYAL, JOCELYN P. CATAPANG, ENRICO V. REGALADO, JEROME O. ARCEGA, ERNESTO C. BLAS, JR., ELPIDIO M. ALMAZAN, KARL CAESAR R. RIMANDO, petitioners, vs. COURT OF APPEALS and PROFESSIONAL REGULATION COMMISSION , respondents.

Balgos & Perez Law Offices for petitioners. The Solicitor General for respondents.
SYLLABUS 1.REMEDIAL LAW; P.D. NO. 223; PROFESSIONAL REGULATION COMMISSION; DECISION, ORDER OR RESOLUTION APPEALABLE TO THE REGIONAL TRIAL COURT. There is no law providing for the next course of action for a party who wants to question a ruling or order of the Professional Regulation Commission. Consequently, Civil Case No. 86-37950, which was filed in order to enjoin the enforcement of a resolution of the respondent Professional Regulation Commission alleged to be unconstitutional, should fall within the general jurisdiction of the Court of First Instance, now the Regional Trial Court. 2.ID.; ID.; ID.; BASIS. What is clear from Presidential Decree No. 223 is that the Professional Regulation Commission is attached to the Office of the President for general direction and coordination. Well settled in our jurisprudence is the view

that even acts of the Office of the President may be reviewed by the Court of First Instance (now the Regional Trial Court). 3.ID.; B.P. BLG 129; EXCLUSIVE APPELLATE JURISDICTION OF COURT OF APPEALS OVER FINAL ORDER OR RULING OF ADMINISTRATIVE BODIES IN EXERCISING QUASI-JUDICIAL FUNCTIONS; "QUASI-JUDICIAL," DEFINED. In order to invoke the exclusive appellate jurisdiction of the Court of Appeals as provided for in Section 9, paragraph 3 of B.P. Blg. 129, there has to be a final order or ruling which resulted from proceedings wherein the administrative body involved exercised its quasi-judicial functions. In Black's Law Dictionary, quasi-judicial is defined as a term applied to the action, discretion, etc., of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. To expound thereon, quasi- judicial adjudication would mean a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. 4.ID.; ID.; ID.; ID.; DOES NOT COVER RULES AND REGULATIONS OF GENERAL APPLICABILITY. This does not cover rules and regulations of general applicability issued by the administrative body to implement its purely administrative policies and functions like Resolution No. 105 which was adopted by the respondent PRC as a measure to preserve the integrity of licensure examinations. 5.ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS MUST NOT BE ISSUED ARBITRARILY. It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. 6.CONSTITUTIONAL LAW; RESOLUTION NO. 105 ISSUED BY THE PROFESSIONAL REGULATION COMMISSION, UNCONSTITUTIONAL FOR BEING UNREASONABLE, ARBITRARY AND A VIOLATION OF ACADEMIC FREEDOM. Resolution No. 105 is not only unreasonable and arbitrary, it also infringes on the examinees' right to liberty guaranteed by the Constitution. Respondent PRC has no authority to dictate on the reviewees as to how they should prepare themselves for the licensure examinations. They cannot be restrained from taking all the lawful steps needed to assure the fulfillment of their ambition to become public accountants. They have every right to make use of their faculties in attaining success in their endeavors. They should be allowed to enjoy their freedom to acquire useful knowledge that will promote their personal growth. Another evident objection to Resolution No. 105 is that it violates the academic freedom of the schools concerned. Respondent PRC cannot interfere with the conduct of review that review schools and centers believe would best enable their enrolees to meet the standards required before becoming a full-pledged public accountant. Unless the means or methods of instruction are clearly found to be inefficient, impractical, or riddled with corruption, review schools and centers may not be stopped from helping out their students.

DECISION

GANCAYCO, J p: Is the Regional Trial Court of the same category as the Professional Regulation Commission so that it cannot pass upon the validity of the administrative acts of the latter? Can this Commission lawfully prohibit the examinees from attending review classes, receiving handout materials, tips or the like three (3) days before the date of examination? These are the issues presented to the court by this petition for certiorari to review the decision of the Court of Appeals promulgated on January 13, 1987, in CA-G.R. SP No. 10591, * declaring null and void the Order dated October 21, 1986 issued by the Regional Trial Court of Manila, Branch 32 in Civil Case No. 86-37950 entitled "Lupo L. Lupangco, et al. vs. Professional Regulation Commission." The records show the following undisputed facts: On or about October 6, 1986, herein respondent Professional Regulation Commission (PRC) issued Resolution No. 105 as part of its "Additional Instructions to Examinees," to all those applying for admission to take the licensure examinations in accountancy. The resolution embodied the following pertinent provisions: "No examinee shall attend any review class, briefing, conference or the like conducted by, or shall receive any hand-out, review material, or any tip from any school, college or university, or any review

center or the like or any reviewer, lecturer, instructor official or employee of any of the aforementioned or similar institutions during the three days immediately preceding every examination day including the examination day. "Any examinee violating this instruction shall be subject to the sanctions prescribed by Sec. 8, Art. III of the Rules and Regulations of the Commission." 1 On October 16, 1986, herein petitioners, all reviewees preparing to take the licensure examinations in accountancy scheduled on October 25 and November 2 of the same year, filed in their own behalf and in behalf of all others similarly situated like them, with the Regional Trial Court of Manila, Branch XXXII, a complaint for injunction with a prayer for the issuance of a writ of preliminary injunction against respondent PRC to restrain the latter from enforcing the abovementioned resolution and to declare the same unconstitutional. Respondent PRC filed a motion to dismiss on October 21, 1987 on the ground that the lower court had no jurisdiction to review and to enjoin the enforcement of its resolution. In an Order of October 21, 1987, the lower court declared that it had jurisdiction to try the case and enjoined the respondent commission from enforcing and giving effect to Resolution No. 105 which it found to be unconstitutional. Not satisfied therewith, respondent PRC, on November 10, 1986, filed with the Court of Appeals a petition for the nullification of the above Order of the lower court. Said petition was granted in the Decision of the Court of Appeals promulgated on January 13, 1987, to wit: "WHEREFORE, finding the petition meritorious the same is hereby GRANTED and the order dated October 21, 1986 issued by respondent court is declared null and void. The respondent court is further directed to dismiss with prejudice Civil Case No. 86-37950 for want of jurisdiction over the subject matter thereof. No costs in this instance. cdrep SO ORDERED." 2 Hence, this petition. The Court of Appeals, in deciding that the Regional Trial Court of Manila had no jurisdiction to entertain the case and to enjoin the enforcement of Resolution No. 105, stated as its basis its conclusion that the Professional Regulation Commission and the Regional Trial Court are co-equal bodies. Thus it held "That the petitioner Professional Regulatory Commission is at least a co-equal body with the Regional Trial Court is beyond question, and co-equal bodies have no power to control each other or interfere with each other's acts." 3 To strengthen its position, the Court of Appeals relied heavily on National Electrification Administration vs. Mendoza, 4which cites Pineda vs. Lantin 5 and Philippine Pacific Fishing, Inc. vs. Luna, 6 where this Court held that a Court of First Instance cannot interfere with the orders of the Securities and Exchange Commission, the two being coequal bodies. After a close scrutiny of the facts and the record of this case, We rule in favor of the petitioner. The cases cited by respondent court are not in point. It is glaringly apparent that the reason why this Court ruled that the Court of First Instance could not interfere with the orders of the Securities and Exchange Commission was that this was so provided for by the law. In Pineda vs. Lantin, We explained that whenever a party is aggrieved by or disagrees with an order or ruling of the Securities and Exchange Commission, he cannot seek relief from courts of general jurisdiction since under the Rules of Court and Commonwealth Act No. 83, as amended by Republic Act No. 635, creating and setting forth the powers and functions of the old Securities and Exchange Commission, his remedy is to go to the Supreme Court on a petition for review. Likewise, in Philippine Pacific Fishing Co., Inc. vs. Luna, it was stressed that if an order of the Securities and Exchange Commission is erroneous, the appropriate remedy to take is first, within the Commission itself, then, to the Supreme Court as mandated in Presidential Decree No. 902-A, the law creating the new Securities and Exchange Commission. Nowhere in the said cases was it held that a Court of First Instance has no jurisdiction over all

other government agencies. On the contrary, the ruling was specifically limited to the Securities and Exchange Commission.

The respondent court erred when it placed the Securities and Exchange Commission and the Professional Regulation Commission in the same category. As already mentioned, with respect to the Securities and Exchange Commission, the laws cited explicitly provide for the procedure that need be taken when one is aggrieved by its order or ruling. Upon the other hand, there is no law providing for the next course of action for a party who wants to question a ruling or order of the Professional Regulation Commission. Unlike Commonwealth Act No. 83 and Presidential Decree No. 902-A, there is no provision in Presidential Decree No. 223, the law creating the Professional Regulation Commission, that orders or resolutions of the Commission are appealable either to the Court of Appeals or to the Supreme Court. Consequently, Civil Case No. 86-37950, which was filed in order to enjoin the enforcement of a resolution of the respondent Professional Regulation Commission alleged to be unconstitutional, should fall within the general jurisdiction of the Court of First Instance, now the Regional Trial Court. 7 What is clear from Presidential Decree No. 223 is that the Professional Regulation Commission is attached to the Office of the President for general direction and coordination. 8 Well settled in our jurisprudence is the view that even acts of the Office of the President may be reviewed by the Court of First Instance (now the Regional Trial Court). In Medalla vs. Sayo, 9 this rule was thoroughly propounded on, to wit: "In so far as jurisdiction of the Court below to review by Certiorari decisions and/or resolutions of the Civil Service Commission and of the Presidential Executive Assistant is concerned, there should be no question but that the power of judicial review should be upheld. The following rulings buttress this conclusion: 'The objection to a judicial review of a Presidential act arises from a failure to recognize the most important principle in our system of government, i.e., the separation of powers into three co-equal departments, the executive, the legislative and the judicial, each supreme within its own assigned powers and duties. When a presidential act is challenged before the courts of justice, it is not to be implied therefrom that the Executive is being made subject and subordinate to the courts. The legality of his acts are under judicial review, not because the Executive is inferior to the courts, but because the law is above the Chief Executive himself, and the courts seek only to interpret, apply or implement it (the law). A judicial review of the President's decision on a case of an employee decided by the Civil Service Board of Appeals should be viewed in this light and the bringing of the case to the Courts should be governed by the same principles as govern the judicial review of all administrative acts of all administrative officers." 10

Republic vs. Presiding Judge, CFI of Lanao del Norte, Br. II, 11 is another case in point. Here, "the Executive Office" of

the Department of Education and Culture issued Memorandum Order No. 93 under the authority of then Secretary of Education Juan Manuel. As in this case, a complaint for injunction was filed with the Court of First Instance of Lanao del Norte because, allegedly, the enforcement of the circular would impair some contracts already entered into by public school teachers. It was the contention of petitioner therein that "the Court of First Instance is not empowered to amend, reverse and modify what is otherwise the clear and explicit provision of the memorandum circular issued by the Executive Office which has the force and effect of law." In resolving the issue, We held: " . . . , We definitely state that respondent Court lawfully acquired jurisdiction in Civil Case No. II-240 (8) because the plaintiff therein asked the lower court for relief, in the form of injunction, in defense of a legal right (freedom to enter into contracts) . . . Hence there is a clear infringement of private respondent's constitutional right to enter into agreements not contrary to law, which might ran the risk of being violated by the threatened implementation of Executive Office Memorandum Circular No. 93, dated February 5, 1968, which prohibits, with certain exceptions, cashiers and disbursing officers from honoring special powers of attorney executed by the payee employees. The respondent Court is not

only right but duty bound to take cognizance of cases of this nature wherein a constitutional and statutory right is allegedly infringed by the administrative action of a government office. Courts of First Instance have original jurisdiction over all civil actions in which the subject of the litigation is not capable of pecuniary estimation (Sec. 44, Republic Act 296, as amended)." 12 (Emphasis supplied.)

In San Miguel Corporation vs. Avelino, 1 3 We ruled that a judge of the Court of First Instance has the authority to decide on the validity of a city tax ordinance even after its validity had been contested before the Secretary of Justice and an opinion thereon had been rendered. In view of the foregoing, We find no cogent reason why Resolution No. 105, issued by the respondent Professional Regulation Commission, should be exempted from the general jurisdiction of the Regional Trial Court. Respondent PRC, on the other hand, contends that under Section 9, paragraph 3 of B.P. Blg. 129, it is the Court of Appeals which has jurisdiction over the case. The said law provides: "SEC. 9.Jurisdiction. The Intermediate Appellate Court shall exercise: xxx xxx xxx (3)Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948." The contention is devoid of merit. cdrep In order to invoke the exclusive appellate jurisdiction of the Court of Appeals as provided for in Section 9, paragraph 3 of B.P. Blg. 129, there has to be a final order or ruling which resulted from proceedings wherein the administrative body involved exercised its quasi-judicial functions. In Black's Law Dictionary, quasi-judicial is defined as a term applied to the action, discretion, etc., of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. To expound thereon, quasi- judicial adjudication would mean a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. 14 This does not cover rules and regulations of general applicability issued by the administrative body to implement its purely administrative policies and functions like Resolution No. 105 which was adopted by the respondent PRC as a measure to preserve the integrity of licensure examinations. The above rule was adhered to in Filipinas Engineering and Machine Shop vs. Ferrer. 15 In this case, the issue presented was whether or not the Court of First Instance had jurisdiction over a case involving an order of the Commission on Elections awarding a contract to a private party which originated from an invitation to bid. The said issue came about because under the laws then in force, final awards, judgments, decisions or orders of the Commission on Elections fall within the exclusive jurisdiction of the Supreme Court by way of certiorari. Hence, it has been consistently held that "it is the Supreme Court, not the Court of First Instance, which has exclusive jurisdiction to review on certiorari final decisions, orders, or rulings of the Commission on Elections relative to the conduct of elections and the enforcement of election laws." 16 As to whether or not the Court of First Instance had jurisdiction in said case, We said: "We are however, far from convinced that an order of the COMELEC awarding a contract to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid comes within the purview of a 'final order' which is exclusively and directly appealable to this court on certiorari. What is contemplated by the term 'final orders, rulings and decisions of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers. (Emphasis supplied.) xxx xxx xxx "We agree with petitioner's contention that the order of the Commission granting the award to a bidder is not an order rendered in a legal controversy before it wherein the parties filed their respective pleadings and presented evidence after which the questioned order was issued; and that this order of

the commission was issued pursuant to its authority to enter into contracts in relation to election purposes. In short, the COMELEC resolution awarding the contract in favor of Acme was not issued

pursuant to its quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed as a ' final order' reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt order may

be imposed by the COMELEC from said order, and no direct and exclusive appeal by certiorari to this Tribunal be from such order. Any question arising from said order may be well taken in an ordinary civil action before the trial courts. (Emphasis supplied) 17

One other case that should be mentioned in this regard is Salud vs. Central Bank of the Philippines. 18 Here, petitioner Central Bank, like respondent in this case, argued that under Section 9, paragraph 3 of B.P. Blg. 129, orders of the Monetary Board are appealable only to the Intermediate Appellate Court. Thus: "The Central Bank and its Liquidator also postulate, for the very first time, that the Monetary Board is among the "quasi-judicial . . . boards' whose judgments are within the exclusive appellate jurisdiction of the IAC; hence, it is only said Court, 'to the exclusion of the Regional Trial Courts,' that may review the Monetary Board's resolutions." 19 Anent the posture of the Central Bank, We made the following pronouncement: "The contention is utterly devoid of merit. The IAC has no appellate jurisdiction over resolutions or orders of the Monetary Board. No law prescribes any mode of appeal from the Monetary Board to the IAC." 2 0 In view of the foregoing, We hold that the Regional Trial Court has jurisdiction to entertain Civil Case No. 86-37950 and enjoin the respondent PRC from enforcing its resolution. LexLib Although We have finally settled the issue of jurisdiction, We find it imperative to decide once and for all the validity of Resolution No. 105 so as to provide the much awaited relief to those who are and will be affected by it. Of course, We realize that the questioned resolution was adopted for a commendable purpose which is "to preserve the integrity and purity of the licensure examinations." However, its good aim cannot be a cloak to conceal its constitutional infirmities. On its face, it can be readily seen that it is unreasonable in that an examinee cannot even attend any review

class, briefing, conference or the like, or receive any hand-out, review material, or any tip from any school, college or university, or any review center or the like or any reviewer, lecturer, instructor, official or employee of any of the aforementioned or similar institutions . . . . 21

The unreasonableness is more obvious in that one who is caught committing the prohibited acts even without any ill motives will be barred from taking future examinations conducted by the respondent PRC. Furthermore, it is inconceivable how the Commission can manage to have a watchful eye on each and every examinee during the three days before the examination period. It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they are authorized to be issued, then they must be held to be invalid. 22 Resolution No. 105 is not only unreasonable and arbitrary, it also infringes on the examinees' right to liberty guaranteed by the Constitution. Respondent PRC has no authority to dictate on the reviewees as to how they should prepare themselves for the licensure examinations. They cannot be restrained from taking all the lawful steps needed to assure the fulfillment of their ambition to become public accountants. They have every right to make use of their faculties in attaining success in their endeavors. They should be allowed to enjoy their freedom to acquire useful knowledge that will promote their personal growth. As defined in a decision of the United States Supreme Court:

"The term 'liberty' means more than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose and to act in such a manner not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness, to pursue such callings and vocations as may be most suitable to develop his capacities, and give to them their highest enjoyment." 23 Another evident objection to Resolution No. 105 is that it violates the academic freedom of the schools concerned. Respondent PRC cannot interfere with the conduct of review that review schools and centers believe would best enable their enrolees to meet the standards required before becoming a full-fledged public accountant. Unless the means or methods of instruction are clearly found to be inefficient, impractical, or riddled with corruption, review schools and centers may not be stopped from helping out their students. At this juncture, We call attention to Our pronouncement in Garcia vs. The Faculty Admission Committee, Loyola School of Theology, 24 regarding academic freedom, to wit: . . . It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide spread of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion." Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in the licensure examinations will be eradicated or at least minimized. Making the examinees suffer by depriving them of legitimate means of review or preparation on those last three precious days when they should be refreshing themselves with all that they have learned in the review classes and preparing their mental and psychological make-up for the examination day itself would be like uprooting the tree to get ride of a rotten branch. What is needed to be done by the respondent is to find out the source of such leakages and stop it right there. If corrupt officials or personnel should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by examiners should be set up and if violations are committed, then licenses should be suspended or revoked. These are all within the powers of the respondent commission as provided for in Presidential Decree No. 223. But by all means the right and freedom of the examinees to avail of all legitimate means to prepare for the examinations should not be curtailed. LLjur In the light of the above, We hereby REVERSE and SET ASIDE, the decision of the Court of Appeals in CA-G.R. SP No. 10591 and another judgment is hereby rendered declaring Resolution No. 105 null and void and of no force and effect for being unconstitutional. This decision is immediately executory. No costs. SO ORDERED.

Narvasa and Cruz, JJ., concur. Grio-Aquino, J., took no part. I signed the CA decision.

EN BANC [G.R. No. L-38429. June 30, 1988.] CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitionersappellants, vs.COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch II, and the CITY OF BUTUAN, respondents-appellees.

Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners. The City Legal Officer for respondents-appellees.

DECISION

GANCAYCO, J p: At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the Municipal Board of the City of Butuan on April 21, 1969, the title and text of which are reproduced below: "ORDINANCE 640 ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION ENGAGED IN THE BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID TICKET. xxx xxx xxx Be it ordained by the Municipal Board of the City of Butuan in session assembled, that: SECTION 1 It shall be unlawful for any person, group of persons, entity, or corporation engaged in the business of selling admission tickets to any movie or other public exhibitions, games, contests, or other performances to require children between seven (7) and twelve (12) years of age to pay full payment for admission tickets intended for adults but should charge only one-half of the value of the said tickets. cdrep SECTION 2 Any person violating the provisions of this Ordinance shall upon conviction be punished by a fine of not less than TWO HUNDRED PESOS (P200.00) but not more than SIX HUNDRED PESOS (P600.00) or an imprisonment of not less than TWO (2) MONTHS or not more than SIX (6) MONTHS or both such fine and imprisonment in the discretion of the Court. If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or Representative of such firm or corporation. SECTION 3 This ordinance shall take effect upon its approval." Petitioners are Carlos Balacuit, Lamberto Tan, and Sergio Yu Carcel, managers of the Maya and Dalisay Theaters, the Crown Theater, and the Diamond Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint before the Court of First Instance of Agusan del Norte and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subject ordinance be declared unconstitutional and, therefore, void and unenforceable.1

quo enjoining the respondent City of Butuan and its officials from enforcing Ordinance No. 640. 4

Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court a

On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent court rendered its decision, 6 the dispositive part of which reads: "IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the respondents and against the petitioners, as follows: 1.Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided, however, that the fine for a single offense shall not exceed TWO HUNDRED PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep. Act No. 523; 2.Dissolving the restraining order issued by this Court; and 3.Dismissing the complaint, with costs against the petitioners.

SO ORDERED." 7 Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in a resolution of the said court dated November 10, 1973. 9 Hence, this petition. Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra

viresand an invalid exercise of police power.

Petitioners contend that Ordinance No. 640 is not within the power of the Municipal Board to enact as provided for in Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which states: "Sec. 15.General powers and duties of the Board. Except as otherwise provided by law, and subject to the conditions and limitations thereof, the Municipal Board shall have the following legislative powers: xxx xxx xxx "(n)To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical performances, cinematographs, public exhibitions and all other performances and places of amusements . . . xxx xxx xxx Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by invoking the general welfare clause embodied in Section 15 (nn) of the cited law, which provides: "(nn)To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix the penalties for the violation of the ordinances, which shall not exceed a two hundred peso fine or six months imprisonment, or both such fine and imprisonment, for a single offense." We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of license fees for theaters, theatrical performances, cinematographs, public exhibitions and other places of amusement has been expressly granted to the City of Butuan under its charter. But the question which needs to be resolved is this: does this power to regulate include the authority to interfere in the fixing of prices of admission to these places of exhibition and amusement whether under its general grant of power or under the general welfare clause as invoked by the City? This is the first time this Court is confronted with the question of direct interference by the local government with the operation of theaters, cinematographs and the like to the extent of fixing the prices of admission to these places. Previous decisions of this Court involved the power to impose license fees upon businesses of this nature as a corollary to the power of the local government to regulate them. Ordinances which required moviehouses or theaters to increase the price of their admission tickets supposedly to cover the license fees have been held to be invalid for these impositions were considered as not merely license fees but taxes for purposes of revenue and not regulation which the cities have no power to exact, 11 Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was interpreted to include the power to control, to govern and to restrain, it would seem that under its power to regulate places of exhibitions and amusement, the Municipal Board of the City of Butuan could make proper police regulations as to the mode in which the business shall be exercised. llcd While in a New York case, 13 an ordinance which regulates the business of selling admission tickets to public exhibitions or performances by virtue of the power of cities under the General City Law "to maintain order, enforce the laws, protect property and preserve and care for the safety, health, comfort and general welfare of the inhabitants of the city and visitors thereto; and for any of said purposes, to regulate and license occupations" was considered not to be within the scope of any duty or power implied in the charter. It was held therein that the power

of regulation of public exhibitions and places of amusement within the city granted by the charter does not carry with it any authority to interfere with the price of admission to such places or the resale of tickets or tokens of admission. In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other places of public exhibition are subject to regulation by the municipal council in the exercise of delegated police power by the local government. 14 Thus, in People v. Chan, 15 an ordinance of the City of Manila prohibiting first run cinematographs from selling tickets beyond their seating capacity was upheld as constitutional for being a valid exercise of police power. Still in another case, 16 the validity of an ordinance of the City of Bacolod prohibiting admission of two or more persons in moviehouses and other amusement places with the use of only one ticket was sustained as a valid regulatory police measure not only in the interest of preventing fraud in so far as municipal taxes are concerned but also in accordance with public health, public safety, and the general welfare. The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question under its power to regulate embodied in Section 15(n), now invokes the police power as delegated to it under the general welfare clause to justify the enactment of said ordinance. To invoke the exercise of police power, not only must it appear that the interest of the public generally requires an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 18 Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for being oppressive, unfair, unjust, confiscatory, and an undue restraint of trade, and violative of the right of persons to enter into contracts, considering that the theater owners are bound under a contract with the film owners for just admission prices for general admission, balcony and lodge. In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this Court

held:

"The authority of municipal corporations to regulate is essentially police power. Inasmuch as the same generally entails a curtailment of the liberty, the rights and/or the property of persons, which are protected and even guaranteed by the Constitution, the exercise of police power is necessarily subject to a qualification, limitation or restriction demanded by the regard, the respect and the obedience due to the prescriptions of the fundamental law, particularly those forming part of the Constitution of Liberty, otherwise known as the Bill of Rights the police power measure must be reasonable. In other words, individual rights may be adversely affected by the exercise of police power to the extent only and only to the extent that may be fairly required by the legitimate demands of public interest or public welfare." What is the reason behind the enactment of Ordinance No. 640? A reading of the minutes of the regular session of the Municipal Board when the ordinance in question was passed shows that a certain Councilor Calo, the proponent of the measure, had taken into account the complaints of parents that for them to pay the full price of admission for their children is too financially burdensome. cdll The trial court advances the view that "even if the subject ordinance does not spell out its raison d'etre, in all probability the respondents were impelled by the awareness that children are entitled to share in the joys of their elders, but that considering that, apart from size, children between the ages of seven and twelve cannot fully grasp the nuance of movies or other public exhibitions, games, contests or other performances, the admission prices with respect to them ought to be reduced." 19a We must bear in mind that there must be public necessity which demands the adoption of proper measures to secure the ends sought to be attained by the enactment of the ordinance, and the large discretion is necessarily vested in the legislative authority to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. 20 The methods or means used to protect the public health, morals, safety or welfare, must have some relation to the end in view, for under the guise of the police power, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded by the legislative department. 21 We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. 22 The evident purpose of the ordinance is to help ease the burden of cost on the part of parents who have to shell out the same amount of money for the admission of their children, as they would for themselves. A reduction in the price of admission would mean corresponding savings for the parents; however,

the petitioners are the ones made to bear the cost of these savings. The ordinance does not only make the petitioners suffer the loss of earnings but it likewise penalizes them for failure to comply with it. Furthermore, as petitioners point out, there will be difficulty in its implementation because as already experienced by petitioners since the effectivity of the ordinance, children over 12 years of age tried to pass off their age as below 12 years in order to avail of the benefit of the ordinance. The ordinance does not provide a safeguard against this undesirable practice and as such, the respondent City of Butuan now suggests that birth certificates be exhibited by movie house patrons to prove the age of children. This is, however, not at all practicable. We can see that the ordinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no discernible relation between the ordinance and the promotion of public health, safety, morals and the general welfare. Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious practice of movie operators and other public exhibitions promoters or the like of demanding equal price for their admission tickets along with the adults. This practice is allegedly repugnant and unconscionable to the interest of the City in the furtherance of the prosperity, peace, good order, comfort, convenience and the general well-being of its inhabitants. There is nothing pernicious in demanding equal price for both children and adults. The petitioners are merely conducting their legitimate businesses. The object of every business entrepreneur is to make a profit out of his venture. There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. It is a totally voluntary act on the part of the purchaser if he buys a ticket to such performances. Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen the economic burden of parents whose minor children are lured by the attractive nuisance being maintained by the petitioners. Respondent further alleges that by charging the full price, the children are being exploited by movie house operators. We fail to see how the children are exploited if they pay the full price of admission. They are treated with the same quality of entertainment as the adults. The supposition of the trial court that because of their age children cannot fully grasp the nuances of such entertainment as adults do fails to convince Us that the reduction in admission ticket price is justifiable. In fact, by the very claim of respondent that movies and the like are attractive nuisances, it is difficult to comprehend why the municipal board passed the subject ordinance. How can the municipal authorities consider the movies an attractive nuisance and yet encourage parents and children to patronize them by lowering the price of admission for children? Perhaps, there is some truth to the argument of petitioners that Ordinance No. 640 is detrimental to the public good and the general welfare of society for it encourages children of tender age to frequent the movies, rather than attend to their studies in school or be in their homes. Moreover, as a logical consequence of the ordinance, movie house and theater operators will be discouraged from exhibiting wholesome movies for general patronage, much less children's pictures if only to avoid compliance with the ordinance and still earn profits for themselves. For after all, these movie house and theater operators cannot be compelled to exhibit any particular kind of film except those films which may be dictated by public demand and those which are restricted by censorship laws. So instead of children being able to share in the joys of their elders as envisioned by the trial court, there will be a dearth of wholesome and educational movies for them to enjoy. There are a number of cases decided by the Supreme Court and the various state courts of the United States which upheld the right of the proprietor of a theater to fix the price of an admission ticket as against the right of the state to interfere in this regard and which We consider applicable to the case at bar. LibLex A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of the theater or it may be evidence of a contract whereby, for a valuable consideration, the purchaser has acquired the right to enter the theater and observe the performance on condition that he behaves properly. 23 Such ticket, therefore, represents a right, positive or conditional, as the case may be, according to the terms of the original contract of sale. This right is clearly a right of property. The ticket which represents that right is also, necessarily, a species of property. As such, the owner thereof, in the absence of any condition to the contrary in the contract by which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an act prohibiting the sale of tickets to theaters or other places of amusement at more than the regular price was held invalid as conflicting with the state constitution securing the right of property. 25 In Collister vs. Hayman, 26 it was held: "The defendants were conducting a private business, which, even if clothed with a public interest, was without a franchise to accommodate the public, and they had the right to control it, the same as the proprietors of any other business, subject to such obligations as were placed upon them by statute. Unlike a carrier of passengers, for instance, with a franchise from the state, and hence under obligation to transport anyone who applies and to continue the business year in and year out, the proprietors of a theater can open and close their place at will, and no one can make a lawful complaint. They can

charge what they choose for admission to their theater. They can limit the number admitted. They can refuse to sell tickets and collect the price of admission at the door. They can preserve order and enforce quiet while the performance is going on. They can make it a part of the contract and condition of admission, by giving due notice and printing the condition in the ticket that no one shall be admitted under 21 years of age, or that men only or women only shall be admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like. The proprietors, in the control of their business, may regulate the terms of admission in any reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon the condition, and the purchaser impliedly promises to perform it."

In Tyson and Bro.- United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme Court held: ". . . . And certainly a place of entertainment is in no legal sense a public utility; and quite as certainly, its activities are not such that their enjoyment can be regarded under any conditions from the point of view of an emergency. "The interest of the public in theaters and other places of entertainment may be more nearly, and with better reason, assimilated to the like interest in provision stores and markets and in the rental of houses and apartments for residence purposes; although in importance it fails below such an interest in the proportion that food and shelter are of more moment than amusement or instruction. As we have shown there is no legislative power to fix the prices of provisions or clothing, or the rental charges for houses and apartments, in the absence of some controlling emergency; and we are unable to perceive any dissimilarities of such quality or degree as to justify a different rule in respect of amusements and entertainment . . ." We are in consonance with the foregoing observations and conclusions of American courts. In this jurisdiction, legislation had been passed controlling the prices of goods, commodities and drugs during periods of emergency, 28limiting the net profits of public utility 29 as well as regulating rentals of residential apartments for a limited period, 30as a matter of national policy in the interest of public health and safety, economic security and the general welfare of the people. And these laws cannot be impugned as unconstitutional for being violative of the due process clause. However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense could these businesses be considered public utilities. The State has not found it appropriate as a national policy to interfere with the admission prices to these performances. This does not mean however, that theaters and exhibitions are not affected with public interest even to a certain degree. Motion pictures have been considered important both as a medium for the communication of ideas and expression of the artistic impulse. Their effects on the perceptions by our people of issues and public officials or public figures as well as the prevailing cultural traits are considerable. 31 People of all ages flock to movie houses, games and other public exhibitions for recreation and relaxation. The government realizing their importance has seen it fit to enact censorship laws to regulate the movie industry. 32 Their aesthetic entertainment and even educational values cannot be underestimated. Even police measures regulating the operation of these businesses have been upheld in order to safeguard public health and safety. llcd Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the same must be resolved in the negative. While it is true that a business may be regulated, it is equally true that such regulation must be within the bounds of reason, that is, the regulatory ordinance must be reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. 33 A police measure for the regulation of the conduct, control and operation of a business should not encroach upon the legitimate and lawful exercise by the citizens of their property rights. 34 The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself and, as such, within the protection of the due process clause. 36 Respondent City of Butuan argues that the presumption is always in favor of the validity of the ordinance. This may be the rule but it has already been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper evidence. 38

Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could assume that, on its face, the interference was reasonable, from the foregoing considerations, it has been fully shown that it is an unwarranted and unlawful curtailment of the property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, under the guise of exercising police power, be upheld as valid. WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED and SET ASIDE and a new judgment is hereby rendered declaring Ordinance No. 640 unconstitutional and, therefore, null and void. This decision is immediately executory. SO ORDERED.

Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Grio-Aquino, JJ., concur. Fernan, Melencio-Herrera, Feliciano, and Cortes, JJ., in the result. Medialdea, J., took no part.

EN BANC [G.R. No. 133640. November 25, 2005.] RODOLFO S. BELTRAN, doing business under the name and style, OUR LADY OF FATIMA BLOOD BANK, FELY G. MOSALE, doing business under the name and style, MOTHER SEATON BLOOD BANK; PEOPLE'S BLOOD BANK, INC.; MARIA VICTORIA T. VITO, M.D., doing business under the name and style, AVENUE BLOOD BANK; JESUS M. GARCIA, M.D., doing business under the name and style, HOLY REDEEMER BLOOD BANK, ALBERT L. LAPITAN, doing business under the name and style, BLUE CROSS BLOOD TRANSFUSION SERVICES; EDGARDO R. RODAS, M.D., doing business under the name and style, RECORD BLOOD BANK, in their individual capacities and for and in behalf of PHILIPPINE ASSOCIATION OF BLOOD BANKS, petitioners, vs. THE SECRETARY OF HEALTH, respondent. [G.R. No. 133661. November 25, 2005.] DOCTORS' BLOOD CENTER, petitioner, vs. DEPARTMENT OF HEALTH, respondent. [G.R. No. 139147. November 25, 2005.] RODOLFO S. BELTRAN, doing business under the name and style, OUR LADY OF FATIMA BLOOD BANK, FELY G. MOSALE, doing business under the name and style, MOTHER SEATON BLOOD BANK; PEOPLE'S BLOOD BANK, INC.; MARIA VICTORIA T. VITO, M.D., doing business under the name and style, AVENUE BLOOD BANK; JESUS M. GARCIA, M.D., doing business under the name and style, HOLY REDEEMER BLOOD BANK, ALBERT L. LAPITAN, doing business under the name and style, BLUE CROSS BLOOD TRANSFUSION SERVICES; EDGARDO R. RODAS, M.D., doing business under the name and style, RECORD BLOOD BANK, in their Individual capacities and for and in behalf of PHILIPPINE ASSOCIATION OF BLOOD BANKS, petitioners, vs. THE SECRETARY OF HEALTH, respondent.

Adviento Mallonga Adviento Law Offices for petitioners. The Solicitor General for public respondent.

SYLLABUS 1.POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; QUASI-LEGISLATIVE OR RULE MAKING POWER; DELEGATION OF LEGISLATIVE POWER, WHEN VALID; CASE AT BAR. In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the Legislature so that nothing was left to the judgment of the administrative body or any other appointee or delegate of the Legislature. Except as to matters of detail that may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It is clear from the provisions of the Act that the Legislature intended primarily to safeguard the health of the people and has mandated several measures to attain this objective. One of these is the phase out of commercial blood banks in the country. The law has sufficiently provided a definite standard for the guidance of the Secretary of Health in carrying out its provisions, that is, the promotion of public health by providing a safe and adequate supply of blood through voluntary blood donation. By its provisions, it has conferred the power and authority to the Secretary of Health as to its execution, to be exercised under and in pursuance of the law. Congress may validly delegate to administrative agencies the authority to promulgate rules and regulations to implement a given legislation and effectuate its policies. . . . The true distinction between the power to make laws and discretion as to its execution is illustrated by the fact that the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. 2.ID.; CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; CLASSIFICATION, WHEN REASONABLE. What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the class. 3.ID.; ID.; INHERENT POWERS OF THE STATE; POLICE POWER; REQUISITES; CASE AT BAR. Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the attainment of the objective sought to be accomplished and not unduly oppressive upon individuals. . . . The Court finds that the National Blood Services Act is a valid exercise of the State's police power. Therefore, the Legislature, under the circumstances, adopted a course of action that is both necessary and reasonable for the common good. Police power is the State authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. 4.ID.; ID.; ID.; ID.; PREVAILS OVER RIGHTS TO CONTRACT AND PROPERTY. [I]n the case of Philippine Association of Service Exporters, Inc. v. Drilon, settled is the rule that the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government. The right granted by this provision must submit to the demands and necessities of the State's power of regulation. While the Court understands the grave implications of Section 7 of the law in question, the concern of the Government in this case, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of government regulation. Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. This doctrine was reiterated in the case of Vda. de Genuino v. Court of Agrarian Relations where the Court held that individual rights to contract and to property have to give way to police power exercised for public welfare. 5.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CONTEMPT; PRESUPPOSES A CONTUMACIOUS ATTITUDE, A FLOUTING OR ARROGANT BELLIGERENCE IN DEFIANCE OF THE COURT. Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence in defiance of the court. There is nothing contemptuous about the statements and information contained in the health advisory that were distributed by DOH before the TRO was issued by this Court ordering the former to cease and desist from distributing the same.

6.POLITICAL LAW; CONSTITUTIONAL LAW; STATUTES; ALL REASONABLE DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE CONSTITUTIONALITY OF A STATUTE. The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail.

DECISION

AZCUNA, J p: Before this Court are petitions assailing primarily the constitutionality of Section 7 of Republic Act No. 7719, otherwise known as the "National Blood Services Act of 1994," and the validity of Administrative Order (A.O.) No. 9, series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. G.R. No. 133640, 1 entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health" and G.R. No. 133661, 2 entitled "Doctors Blood Bank Center vs. Department of Health" are petitions for certiorari and mandamus, respectively, seeking the annulment of the following: (1) Section 7 of Republic Act No. 7719; and, (2) Administrative Order (A.O.) No. 9, series of 1995. Both petitions likewise pray for the issuance of a writ of prohibitory injunction enjoining the Secretary of Health from implementing and enforcing the aforementioned law and its Implementing Rules and Regulations; and, for a mandatory injunction ordering and commanding the Secretary of Health to grant, issue or renew petitioners' license to operate free standing blood banks (FSBB). cdtai 2006 The above cases were consolidated in a resolution of the Court En Banc dated June 2, 1998. 3 G.R. No. 139147, 4 entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health," on the other hand, is a petition to show cause why respondent Secretary of Health should not be held in contempt of court. This case was originally assigned to the Third Division of this Court and later consolidated with G.R. Nos. 133640 and 133661 in a resolution dated August 4, 1999. 5 Petitioners comprise the majority of the Board of Directors of the Philippine Association of Blood Banks, a duly registered non-stock and non-profit association composed of free standing blood banks. Public respondent Secretary of Health is being sued in his capacity as the public official directly involved and charged with the enforcement and implementation of the law in question. HcaDIA The facts of the case are as follows: Republic Act No. 7719 or the National Blood Services Act of 1994 was enacted into law on April 2, 1994. The Act seeks to provide an adequate supply of safe blood by promoting voluntary blood donation and by regulating blood banks in the country. It was approved by then President Fidel V. Ramos on May 15, 1994 and was subsequently published in the Official Gazette on August 18, 1994. The law took effect on August 23, 1994. On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law was promulgated by respondent Secretary of the Department of Health (DOH). 6 Section 7 of R.A. 7719 7 provides: "Section 7.Phase-out of Commercial Blood Banks All commercial blood banks shall be phasedout over a period of two (2) years after the effectivity of this Act, extendable to a maximum period of two (2) years by the Secretary."

Section 23 of Administrative Order No. 9 provides: "Section 23. Process of Phasing Out. The Department shall effect the phasing-out of all commercial blood banks over a period of two (2) years, extendible for a maximum period of two (2) years after the effectivity of R.A. 7719. The decision to extend shall be based on the result of a careful study and review of the blood supply and demand and public safety." 8 Blood banking and blood transfusion services in the country have been arranged in four (4) categories: blood centers run by the Philippine National Red Cross (PNRC), government-run blood services, private hospital blood banks, and commercial blood services. Years prior to the passage of the National Blood Services Act of 1994, petitioners have already been operating commercial blood banks under Republic Act No. 1517, entitled "An Act Regulating the Collection, Processing and Sale of Human Blood, and the Establishment and Operation of Blood Banks and Blood Processing Laboratories." The law, which was enacted on June 16, 1956, allowed the establishment and operation by licensed physicians of blood banks and blood processing laboratories. The Bureau of Research and Laboratories (BRL) was created in 1958 and was given the power to regulate clinical laboratories in 1966 under Republic Act No. 4688. In 1971, the Licensure Section was created within the BRL. It was given the duty to enforce the licensure requirements for blood banks as well as clinical laboratories. Due to this development, Administrative Order No. 156, Series of 1971, was issued. The new rules and regulations triggered a stricter enforcement of the Blood Banking Law, which was characterized by frequent spot checks, immediate suspension and communication of such suspensions to hospitals, a more systematic record-keeping and frequent communication with blood banks through monthly information bulletins. Unfortunately, by the 1980's, financial difficulties constrained the BRL to reduce the frequency of its supervisory visits to the blood banks. 9 Meanwhile, in the international scene, concern for the safety of blood and blood products intensified when the dreaded disease Acute Immune Deficiency Syndrome (AIDS) was first described in 1979. In 1980, the International Society of Blood Transfusion (ISBT) formulated the Code of Ethics for Blood Donation and Transfusion. In 1982, the first case of transfusion-associated AIDS was described in an infant. Hence, the ISBT drafted in 1984, a model for a national blood policy outlining certain principles that should be taken into consideration. By 1985, the ISBT had disseminated guidelines requiring AIDS testing of blood and blood products for transfusion. 10 In 1989, another revision of the Blood Banking Guidelines was made. The DOH issued Administrative Order No. 57, Series of 1989, which classified banks into primary, secondary and tertiary depending on the services they provided. The standards were adjusted according to this classification. For instance, floor area requirements varied according to classification level. The new guidelines likewise required Hepatitis B and HIV testing, and that the blood bank be headed by a pathologist or a hematologist. 11 In 1992, the DOH issued Administrative Order No. 118-A institutionalizing the National Blood Services Program (NBSP). The BRL was designated as the central office primarily responsible for the NBSP. The program paved the way for the creation of a committee that will implement the policies of the program and the formation of the Regional Blood Councils. AEIcTD In August 1992, Senate Bill No. 1011, entitled "An Act Promoting Voluntary Blood Donation, Providing for an Adequate Supply of Safe Blood, Regulating Blood Banks and Providing Penalties for Violations Thereof, and for other Purposes" was introduced in the Senate. 12 Meanwhile, in the House of Representatives, House Bills No. 384, 546, 780 and 1978 were being deliberated to address the issue of safety of the Philippine blood bank system. Subsequently, the Senate and House Bills were referred to the appropriate committees and subsequently consolidated. 13 In January of 1994, the New Tropical Medicine Foundation, with the assistance of the U.S. Agency for International Development (USAID) released its final report of a study on the Philippine blood banking system entitled "Project to Evaluate the Safety of the Philippine Blood Banking System ." It was revealed that of the blood units collected in 1992, 64.4% were supplied by commercial blood banks, 14.5% by the PNRC, 13.7% by government hospital-based blood banks, and 7.4% by private hospital-based blood banks. During the time the study was made, there were only twentyfour (24) registered or licensed free-standing or commercial blood banks in the country. Hence, with these numbers in mind, the study deduced that each commercial blood bank produces five times more blood than the Red Cross and fifteen times more than the government-run blood banks. The study, therefore, showed that the Philippines heavily relied on

commercial sources of blood. The study likewise revealed that 99.6% of the donors of commercial blood banks and 77.0% of the donors of private-hospital based blood banks are paid donors. Paid donors are those who receive remuneration for donating their blood. Blood donors of the PNRC and government-run hospitals, on the other hand, are mostly voluntary. 14

It was further found, among other things, that blood sold by persons to blood commercial banks are three times more likely to have any of the four (4) tested infections or blood transfusion transmissible diseases, namely, malaria, syphilis, Hepatitis B and Acquired Immune Deficiency Syndrome (AIDS) than those donated to PNRC. 15 Commercial blood banks give paid donors varying rates around P50 to P150, and because of this arrangement, many of these donors are poor, and often they are students, who need cash immediately. Since they need the money, these donors are not usually honest about their medical or social history. Thus, blood from healthy, voluntary donors who give their true medical and social history are about three times much safer than blood from paid donors. 16 What the study also found alarming is that many Filipino doctors are not yet fully trained on the specific indications for blood component transfusion. They are not aware of the lack of blood supply and do not feel the need to adjust their practices and use of blood and blood products. It also does not matter to them where the blood comes from. 17 On August 23, 1994, the National Blood Services Act providing for the phase out of commercial blood banks took effect. On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law was promulgated by DOH. The phase-out period was extended for two years by the DOH pursuant to Section 7 of Republic Act No. 7719 and Section 23 of its Implementing Rules and Regulations. Pursuant to said Act, all commercial blood banks should have been phased out by May 28, 1998. Hence, petitioners were granted by the Secretary of Health their licenses to open and operate a blood bank only until May 27, 1998. On May 20, 1998, prior to the expiration of the licenses granted to petitioners, they filed a petition for certiorari with application for the issuance of a writ of preliminary injunction or temporary restraining order under Rule 65 of the Rules of Court assailing the constitutionality and validity of the aforementioned Act and its Implementing Rules and Regulations. The case was entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank," docketed as G.R. No. 133640. On June 1, 1998, petitioners filed an Amended Petition for Certiorari with Prayer for Issuance of a Temporary Restraining Order, writ of preliminary mandatory injunction and/or status quo ante order. 18 In the aforementioned petition, petitioners assail the constitutionality of the questioned legal provisions, namely, Section 7 of Republic Act No. 7719 and Section 23 of Administrative Order No. 9, Series of 1995, on the following grounds: 19 1.The questioned legal provisions of the National Blood Services Act and its Implementing Rules violate the equal protection clause for irrationally discriminating against free standing blood banks in a manner which is not germane to the purpose of the law; 2.The questioned provisions of the National Blood Services Act and its Implementing Rules represent undue delegation if not outright abdication of the police power of the state; and, THSaEC 3.The questioned provisions of the National Blood Services Act and its Implementing Rules are unwarranted deprivation of personal liberty. On May 22, 1998, the Doctors Blood Center filed a similar petition for mandamus with a prayer for the issuance of a temporary restraining order, preliminary prohibitory and mandatory injunction before this Court entitled " Doctors Blood Center vs. Department of Health," docketed as G.R. No. 133661. 20 This was consolidated with G.R. No. 133640. 21

Similarly, the petition attacked the constitutionality of Republic Act No. 7719 and its implementing rules and regulations, thus, praying for the issuance of a license to operate commercial blood banks beyond May 27, 1998. Specifically, with regard to Republic Act No. 7719, the petition submitted the following questions 22 for resolution: 1.Was it passed in the exercise of police power, and was it a valid exercise of such power? 2.Does it not amount to deprivation of property without due process? 3.Does it not unlawfully impair the obligation of contracts? 4.With the commercial blood banks being abolished and with no ready machinery to deliver the same supply and services, does R.A. 7719 truly serve the public welfare? On June 2, 1998, this Court issued a Resolution directing respondent DOH to file a consolidated comment. In the same Resolution, the Court issued a temporary restraining order (TRO) for respondent to cease and desist from implementing and enforcing Section 7 of Republic Act No. 7719 and its implementing rules and regulations until further orders from the Court. 23 On August 26, 1998, respondent Secretary of Health filed a Consolidated Comment on the petitions for certiorari andmandamus in G.R. Nos. 133640 and 133661, with opposition to the issuance of a temporary restraining order. 24 In the Consolidated Comment, respondent Secretary of Health submitted that blood from commercial blood banks is unsafe and therefore the State, in the exercise of its police power, can close down commercial blood banks to protect the public. He cited the record of deliberations on Senate Bill No. 1101 which later became Republic Act No. 7719, and the sponsorship speech of Senator Orlando Mercado. The rationale for the closure of these commercial blood banks can be found in the deliberations of Senate Bill No. 1011, excerpts of which are quoted below: Senator Mercado: I am providing over a period of two years to phase out all commercial blood banks. So that in the end, the new section would have a provision that states: "ALL COMMERCIAL BLOOD BANKS SHALL BE PHASED OUT OVER A PERIOD OF TWO YEARS AFTER THE EFFECTIVITY OF THIS ACT. BLOOD SHALL BE COLLECTED FROM VOLUNTARY DONORS ONLY AND THE SERVICE FEE TO BE CHARGED FOR EVERY BLOOD PRODUCT ISSUED SHALL BE LIMITED TO THE NECESSARY EXPENSES ENTAILED IN COLLECTING AND PROCESSING OF BLOOD. THE SERVICE FEE SHALL BE MADE UNIFORM THROUGH GUIDELINES TO BE SET BY THE DEPARTMENT OF HEALTH." I am supporting Mr. President, the finding of a study called "Project to Evaluate the Safety of the Philippine Blood Banking System." This has been taken note of. This is a study done with the assistance of the USAID by doctors under the New Tropical Medicine Foundation in Alabang. Part of the long-term measures proposed by this particular study is to improve laws, outlaw buying and selling of blood and legally define good manufacturing processes for blood. This goes to the very heart of my amendment which seeks to put into law the principle that blood should not be subject of commerce of man. xxx xxx xxx The Presiding Officer [Senator Aquino]: What does the sponsor say? Senator Webb: Mr. President, just for clarity, I would like to find out how the Gentleman defines a commercial blood bank. I am at a loss at times what a commercial blood bank really is. TcIaHC Senator Mercado: We have a definition, I believe, in the measure, Mr. President.

The Presiding Officer [Senator Aquino]: It is a business where profit is considered. Senator Mercado: If the Chairman of the Committee would accept it, we can put a provision on Section 3, a definition of a commercial blood bank, which, as defined in this law, exists for profit and engages in the buying and selling of blood or its components. Senator Webb: That is a good description, Mr. President. xxx xxx xxx Senator Mercado: I refer, Mr. President, to a letter written by Dr. Jaime Galvez-Tan, the Chief of Staff, Undersecretary of Health, to the good Chairperson of the Committee on Health. In recommendation No. 4, he says: "The need to phase out all commercial blood banks within a two-year period will give the Department of Health enough time to build up government's capability to provide an adequate supply of blood for the needs of the nation . . . the use of blood for transfusion is a medical service and not a sale of commodity." Taking into consideration the experience of the National Kidney Institute, which has succeeded in making the hospital 100 percent dependent on voluntary blood donation, here is a success story of a hospital that does not buy blood. All those who are operated on and need blood have to convince their relatives or have to get volunteers who would donate blood. . . If we give the responsibility of the testing of blood to those commercial blood banks, they will cut corners because it will protect their profit. In the first place, the people who sell their blood are the people who are normally in the high-risk category. So we should stop the system of selling and buying blood so that we can go into a national voluntary blood program. It has been said here in this report, and I quote: "Why is buying and selling of blood not safe? This is not safe because a donor who expects payment for his blood will not tell the truth about his illnesses and will deny any risky social behavior such as sexual promiscuity which increases the risk of having syphilis or AIDS or abuse of intravenous addictive drugs. Laboratory tests are of limited value and will not detect early infections. Laboratory tests are required only for four diseases in the Philippines. There are other blood transmissible diseases we do not yet screen for and there could be others where there are no tests available yet. A blood bank owner expecting to gain profit from selling blood will also try his best to limit his expenses. Usually he tries to increase his profit by buying cheaper reagents or test kits, hiring cheaper manpower or skipping some tests altogether. He may also try to sell blood even though these have infections in them. Because there is no existing system of counterchecking these, the blood bank owner can usually get away with many unethical practices.

The experience of Germany, Mr. President is illustrative of this issue. The reason why contaminated blood was sold was that there were corners cut by commercial blood banks in the testing process. They were protecting their profits. 25 The sponsorship speech of Senator Mercado further elucidated his stand on the issue: xxx xxx xxx

Senator Mercado: Today, across the country, hundreds of poverty-stricken, sickly and weak Filipinos, who, unemployed, without hope and without money to buy the next meal, will walk into a commercial blood bank, extend their arms and plead that their blood be bought. They will lie about their age, their medical history. They will lie about when they last sold their blood. For doing this, they will receive close to a hundred pesos. This may tide them over for the next few days. Of course, until the next bloodletting. ACDTcE This same blood will travel to the posh city hospitals and urbane medical centers. This same blood will now be bought by the rich at a price over 500% of the value for which it was sold. Between this buying and selling, obviously, someone has made a very fast buck. Every doctor has handled at least one transfusion-related disease in an otherwise normal patient. Patients come in for minor surgery of the hand or whatever and they leave with hepatitis B. A patient comes in for an appendectomy and he leaves with malaria. The worst nightmare: A patient comes in for a Caesarian section and leaves with AIDS. We do not expect good blood from donors who sell their blood because of poverty. The humane dimension of blood transfusion is not in the act of receiving blood, but in the act of giving it . . . For years, our people have been at the mercy of commercial blood banks that lobby their interests among medical technologists, hospital administrators and sometimes even physicians so that a proactive system for collection of blood from healthy donors becomes difficult, tedious and unrewarding. The Department of Health has never institutionalized a comprehensive national program for safe blood and for voluntary blood donation even if this is a serious public health concern and has fallen for the linen of commercial blood bankers, hook, line and sinker because it is more convenient to tell the patient to buy blood. Commercial blood banks hold us hostage to their threat that if we are to close them down, there will be no blood supply. This is true if the Government does not step in to ensure that safe supply of blood. We cannot allow commercial interest groups to dictate policy on what is and what should be a humanitarian effort. This cannot and will never work because their interest in blood donation is merely monetary. We cannot expect commercial blood banks to take the lead in voluntary blood donation. Only the Government can do it, and the Government must do it." 26 On May 5, 1999, petitioners filed a Motion for Issuance of Expanded Temporary Restraining Order for the Court to order respondent Secretary of Health to cease and desist from announcing the closure of commercial blood banks, compelling the public to source the needed blood from voluntary donors only, and committing similar acts "that will ultimately cause the shutdown of petitioners' blood banks." 27 On July 8, 1999, respondent Secretary filed his Comment and/or Opposition to the above motion stating that he has not ordered the closure of commercial blood banks on account of the Temporary Restraining Order (TRO) issued on June 2, 1998 by the Court. In compliance with the TRO, DOH had likewise ceased to distribute the health advisory leaflets, posters and flyers to the public which state that "blood banks are closed or will be closed." According to respondent Secretary, the same were printed and circulated in anticipation of the closure of the commercial blood banks in accordance with R.A. No. 7719, and were printed and circulated prior to the issuance of the TRO. 28 On July 15, 1999, petitioners in G.R. No. 133640 filed a Petition to Show Cause Why Public Respondent Should Not be Held in Contempt of Court, docketed as G.R. No. 139147, citing public respondent's willful disobedience of or resistance to the restraining order issued by the Court in the said case. Petitioners alleged that respondent's act constitutes circumvention of the temporary restraining order and a mockery of the authority of the Court and the orderly administration of justice. 29 Petitioners added that despite the issuance of the temporary restraining order in G.R. No. 133640, respondent, in his effort to strike down the existence of commercial blood banks, disseminated misleading information under the guise of health advisories, press releases, leaflets, brochures and flyers stating, among others, that "this year [1998] all commercial blood banks will be closed by 27 May. Those who need blood will have to rely on government blood banks." 30 Petitioners further claimed that respondent Secretary of Health announced in a press conference during the Blood Donor's Week that commercial blood banks are "illegal and dangerous" and that they "are at

the moment protected by a restraining order on the basis that their commercial interest is more important than the lives of the people." These were all posted in bulletin boards and other conspicuous places in all government hospitals as well as other medical and health centers. 31 In respondent Secretary's Comment to the Petition to Show Cause Why Public Respondent Should Not Be Held in Contempt of Court, dated January 3, 2000, it was explained that nothing was issued by the department ordering the closure of commercial blood banks. The subject health advisory leaflets pertaining to said closure pursuant to Republic Act No. 7719 were printed and circulated prior to the Court's issuance of a temporary restraining order on June 21, 1998. 32 Public respondent further claimed that the primary purpose of the information campaign was "to promote the importance and safety of voluntary blood donation and to educate the public about the hazards of patronizing blood supplies from commercial blood banks." 33 In doing so, he was merely performing his regular functions and duties as the Secretary of Health to protect the health and welfare of the public. Moreover, the DOH is the main proponent of the voluntary blood donation program espoused by Republic Act No. 7719, particularly Section 4 thereof which provides that, in order to ensure the adequate supply of human blood, voluntary blood donation shall be promoted through public education, promotion in schools, professional education, establishment of blood services network, and walking blood donors. DaCEIc Hence, by authority of the law, respondent Secretary contends that he has the duty to promote the program of voluntary blood donation. Certainly, his act of encouraging the public to donate blood voluntarily and educating the people on the risks associated with blood coming from a paid donor promotes general health and welfare and which should be given more importance than the commercial businesses of petitioners. 34 On July 29, 1999, interposing personal and substantial interest in the case as taxpayers and citizens, a Petition-inIntervention was filed interjecting the same arguments and issues as laid down by petitioners in G.R. No. 133640 and 133661, namely, the unconstitutionality of the Acts, and, the issuance of a writ of prohibitory injunction. The intervenors are the immediate relatives of individuals who had died allegedly because of shortage of blood supply at a critical time. 35 The intervenors contended that Republic Act No. 7719 constitutes undue delegation of legislative powers and unwarranted deprivation of personal liberty. 36 In a resolution, dated September 7, 1999, and without giving due course to the aforementioned petition, the Court granted the Motion for Intervention that was filed by the above intervenors on August 9, 1999. In his Comment to the petition-in-intervention, respondent Secretary of Health stated that the sale of blood is contrary to the spirit and letter of the Act that "blood donation is a humanitarian act" and "blood transfusion is a professional medical service and not a sale of commodity (Section 2[a] and [b] of Republic Act No. 7719). The act of selling blood or charging fees other than those allowed by law is even penalized under Section 12." 37 Thus, in view of these, the Court is now tasked to pass upon the constitutionality of Section 7 of Republic Act No. 7719 or the National Blood Services Act of 1994 and its Implementing Rules and Regulations. In resolving the controversy, this Court deems it necessary to address the issues and/or questions raised by petitioners concerning the constitutionality of the aforesaid Act in G.R. No. 133640 and 133661 as summarized hereunder: I WHETHER OR NOT SECTION 7 OF R.A. 7719 CONSTITUTES UNDUE DELEGATION OF LEGISLATIVE POWER; II WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE EQUAL PROTECTION CLAUSE; III

WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE NON-IMPAIRMENT CLAUSE; IV WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS CONSTITUTE DEPRIVATION OF PERSONAL LIBERTY AND PROPERTY; V WHETHER OR NOT R.A. 7719 IS A VALID EXERCISE OF POLICE POWER; and, VI WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS TRULY SERVE PUBLIC WELFARE. cIADaC As to the first ground upon which the constitutionality of the Act is being challenged, it is the contention of petitioners that the phase out of commercial or free standing blood banks is unconstitutional because it is an improper and unwarranted delegation of legislative power. According to petitioners, the Act was incomplete when it was passed by the Legislature, and the latter failed to fix a standard to which the Secretary of Health must conform in the performance of his functions. Petitioners also contend that the two-year extension period that may be granted by the Secretary of Health for the phasing out of commercial blood banks pursuant to Section 7 of the Act constrained the Secretary to legislate, thus constituting undue delegation of legislative power.

In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the Legislature so that nothing was left to the judgment of the administrative body or any other appointee or delegate of the Legislature. 38 Except as to matters of detail that may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. 39 Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It is clear from the provisions of the Act that the Legislature intended primarily to safeguard the health of the people and has mandated several measures to attain this objective. One of these is the phase out of commercial blood banks in the country. The law has sufficiently provided a definite standard for the guidance of the Secretary of Health in carrying out its provisions, that is, the promotion of public health by providing a safe and adequate supply of blood through voluntary blood donation. By its provisions, it has conferred the power and authority to the Secretary of Health as to its execution, to be exercised under and in pursuance of the law. Congress may validly delegate to administrative agencies the authority to promulgate rules and regulations to implement a given legislation and effectuate its policies. 40 The Secretary of Health has been given, under Republic Act No. 7719, broad powers to execute the provisions of said Act. Section 11 of the Act states: "SEC. 11.Rules and Regulations. The implementation of the provisions of the Act shall be in accordance with the rules and regulations to be promulgated by the Secretary, within sixty (60) days from the approval hereof . . . " This is what respondent Secretary exactly did when DOH, by virtue of the administrative body's authority and expertise in the matter, came out with Administrative Order No. 9, series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. Administrative Order. No. 9 effectively filled in the details of the law for its proper implementation. Specifically, Section 23 of Administrative Order No. 9 provides that the phase-out period for commercial blood banks shall be extended for another two years until May 28, 1998 "based on the result of a careful study and review of the blood

supply and demand and public safety." This power to ascertain the existence of facts and conditions upon which the Secretary may effect a period of extension for said phase-out can be delegated by Congress. The true distinction between the power to make laws and discretion as to its execution is illustrated by the fact that the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. 41 In this regard, the Secretary did not go beyond the powers granted to him by the Act when said phase-out period was extended in accordance with the Act as laid out in Section 2 thereof: "SECTION 2.Declaration of Policy In order to promote public health, it is hereby declared the policy of the state: a)to promote and encourage voluntary blood donation by the citizenry and to instill public consciousness of the principle that blood donation is a humanitarian act; CIAacS b)to lay down the legal principle that the provision of blood for transfusion is a medical service and not a sale of commodity; c)to provide for adequate, safe, affordable and equitable distribution of blood supply and blood products; d)to inform the public of the need for voluntary blood donation to curb the hazards caused by the commercial sale of blood; e)to teach the benefits and rationale of voluntary blood donation in the existing health subjects of the formal education system in all public and private schools as well as the nonformal system; f)to mobilize all sectors of the community to participate in mechanisms for voluntary and nonprofit collection of blood; g)to mandate the Department of Health to establish and organize a National Blood Transfusion Service Network in order to rationalize and improve the provision of adequate and safe supply of blood; h)to provide for adequate assistance to institutions promoting voluntary blood donation and providing non-profit blood services, either through a system of reimbursement for costs from patients who can afford to pay, or donations from governmental and nongovernmental entities; i)to require all blood collection units and blood banks/centers to operate on a non-profit basis; j)to establish scientific and professional standards for the operation of blood collection units and blood banks/centers in the Philippines; k)to regulate and ensure the safety of all activities related to the collection, storage and banking of blood; and, l)to require upgrading of blood banks/centers to include preventive services and education to control spread of blood transfusion transmissible diseases." Petitioners also assert that the law and its implementing rules and regulations violate the equal protection clause enshrined in the Constitution because it unduly discriminates against commercial or free standing blood banks in a manner that is not germane to the purpose of the law. 42

What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the class. 43 Republic Act No. 7719 or The National Blood Services Act of 1994, was enacted for the promotion of public health and welfare. In the aforementioned study conducted by the New Tropical Medicine Foundation, it was revealed that the Philippine blood banking system is disturbingly primitive and unsafe, and with its current condition, the spread of infectious diseases such as malaria, AIDS, Hepatitis B and syphilis chiefly from blood transfusion is unavoidable. The situation becomes more distressing as the study showed that almost 70% of the blood supply in the country is sourced from paid blood donors who are three times riskier than voluntary blood donors because they are unlikely to disclose their medical or social history during the blood screening. 44 The above study led to the passage of Republic Act No. 7719, to instill public consciousness of the importance and benefits of voluntary blood donation, safe blood supply and proper blood collection from healthy donors. To do this, the Legislature decided to order the phase out of commercial blood banks to improve the Philippine blood banking system, to regulate the supply and proper collection of safe blood, and so as not to derail the implementation of the voluntary blood donation program of the government. In lieu of commercial blood banks, non-profit blood banks or blood centers, in strict adherence to professional and scientific standards to be established by the DOH, shall be set in place. 45 Based on the foregoing, the Legislature never intended for the law to create a situation in which unjustifiable discrimination and inequality shall be allowed. To effectuate its policy, a classification was made between nonprofit blood banks/centers and commercial blood banks. AaSTIH We deem the classification to be valid and reasonable for the following reasons: One, it was based on substantial distinctions. The former operates for purely humanitarian reasons and as a medical service while the latter is motivated by profit. Also, while the former wholly encourages voluntary blood donation, the latter treats blood as a sale of commodity. Two, the classification, and the consequent phase out of commercial blood banks is germane to the purpose of the law, that is, to provide the nation with an adequate supply of safe blood by promoting voluntary blood donation and treating blood transfusion as a humanitarian or medical service rather than a commodity. This necessarily involves the phase out of commercial blood banks based on the fact that they operate as a business enterprise, and they source their blood supply from paid blood donors who are considered unsafe compared to voluntary blood donors as shown by the USAIDsponsored study on the Philippine blood banking system. Three, the Legislature intended for the general application of the law. Its enactment was not solely to address the peculiar circumstances of the situation nor was it intended to apply only to the existing conditions. Lastly, the law applies equally to all commercial blood banks without exception. Having said that, this Court comes to the inquiry as to whether or not Republic Act No. 7719 constitutes a valid exercise of police power. The promotion of public health is a fundamental obligation of the State. The health of the people is a primordial governmental concern. Basically, the National Blood Services Act was enacted in the exercise of the State's police power in order to promote and preserve public health and safety. Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the attainment of the objective sought to be accomplished and not unduly oppressive upon individuals. 46

In the earlier discussion, the Court has mentioned of the avowed policy of the law for the protection of public health by ensuring an adequate supply of safe blood in the country through voluntary blood donation. Attaining this objective requires the interference of the State given the disturbing condition of the Philippine blood banking system. In serving the interest of the public, and to give meaning to the purpose of the law, the Legislature deemed it necessary to phase out commercial blood banks. This action may seriously affect the owners and operators, as well as the employees, of commercial blood banks but their interests must give way to serve a higher end for the interest of the public. The Court finds that the National Blood Services Act is a valid exercise of the State's police power. Therefore, the Legislature, under the circumstances, adopted a course of action that is both necessary and reasonable for the common good. Police power is the State authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. 47 It is in this regard that the Court finds the related grounds and/or issues raised by petitioners, namely, deprivation of personal liberty and property, and violation of the non-impairment clause, to be unmeritorious. Petitioners are of the opinion that the Act is unconstitutional and void because it infringes on the freedom of choice of an individual in connection to what he wants to do with his blood which should be outside the domain of State intervention. Additionally, and in relation to the issue of classification, petitioners asseverate that, indeed, under the Civil Code, the human body and its organs like the heart, the kidney and the liver are outside the commerce of man but this cannot be made to apply to human blood because the latter can be replenished by the body. To treat human blood equally as the human organs would constitute invalid classification. 48 Petitioners likewise claim that the phase out of the commercial blood banks will be disadvantageous to them as it will affect their businesses and existing contracts with hospitals and other health institutions, hence Section 7 of the Act should be struck down because it violates the non-impairment clause provided by the Constitution. CIcEHS As stated above, the State, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the State and to this fundamental aim of government, the rights of the individual may be subordinated. 49 Moreover, in the case of Philippine Association of Service Exporters, Inc. v. Drilon , 50 settled is the rule that the nonimpairment clause of the Constitution must yield to the loftier purposes targeted by the government. The right granted by this provision must submit to the demands and necessities of the State's power of regulation. While the Court understands the grave implications of Section 7 of the law in question, the concern of the Government in this case, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of government regulation. Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. 51 This doctrine was reiterated in the case of Vda. de Genuino v. Court of Agrarian Relations 52 where the Court held that individual rights to contract and to property have to give way to police power exercised for public welfare. As for determining whether or not the shutdown of commercial blood banks will truly serve the general public considering the shortage of blood supply in the country as proffered by petitioners, we maintain that the wisdom of the Legislature in the lawful exercise of its power to enact laws cannot be inquired into by the Court. Doing so would be in derogation of the principle of separation of powers. 53 That, under the circumstances, proper regulation of all blood banks without distinction in order to achieve the objective of the law as contended by petitioners is, of course, possible; but, this would be arguing on what the law may be or should be and not what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for this Court to pass upon. 54

Finally, with regard to the petition for contempt in G.R. No. 139147, on the other hand, the Court finds respondent Secretary of Health's explanation satisfactory. The statements in the flyers and posters were not aimed at influencing or threatening the Court in deciding in favor of the constitutionality of the law. Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence in defiance of the court. 55There is nothing contemptuous about the statements and information contained in the health advisory that were distributed by DOH before the TRO was issued by this Court ordering the former to cease and desist from distributing the same. In sum, the Court has been unable to find any constitutional infirmity in the questioned provisions of the National Blood Services Act of 1994 and its Implementing Rules and Regulations. The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. 56Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of the National Blood Services Act of 1994 and its Implementing Rules and Regulations, the Court finds that petitioners have failed to overcome the presumption of constitutionality of the law. As to whether the Act constitutes a wise legislation, considering the issues being raised by petitioners, is for Congress to determine. 57 WHEREFORE, premises considered, the Court renders judgment as follows: 1.In G.R. Nos. 133640 and 133661, the Court UPHOLDS THE VALIDITY of Section 7 of Republic Act No. 7719, otherwise known as the National Blood Services Act of 1994, and Administrative Order No. 9, Series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. The petitions are DISMISSED. Consequently, the Temporary Restraining Order issued by this Court on June 2, 1998, is LIFTED. cIACaT 2.In G.R. No. 139147, the petition seeking to cite the Secretary of Health in contempt of court is DENIED for lack of merit. No costs. SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Tinga and Garcia, JJ., concur. Chizo-Nazario, J., is on leave.

EN BANC [G.R. No. 166494. June 29, 2007.] CARLOS SUPERDRUG CORP., doing business under the name and style "Carlos Superdrug", ELSIE M. CANO, doing business under the name and style "Advance Drug", Dr. SIMPLICIO L. YAP, JR., doing business under the name and style "City Pharmacy", MELVIN S. DELA SERNA, doing business under the name and style "Botica dela Serna", and LEYTE SERVWELL CORP., doing business under the name and style "Leyte Serv-Well Drugstore",petitioners, vs. DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT (DSWD),

DEPARTMENT OF HEALTH (DOH), DEPARTMENT OF FINANCE (DOF), DEPARTMENT OF JUSTICE (DOJ), and DEPARTMENT OF INTERIOR and LOCAL GOVERNMENT (DILG),respondents.

DECISION

AZCUNA, J p: This is a petition 1 for Prohibition with Prayer for Preliminary Injunction assailing the constitutionality of Section 4 (a) of Republic Act (R.A.) No. 9257, 2 otherwise known as the "Expanded Senior Citizens Act of 2003". Petitioners are domestic corporations and proprietors operating drugstores in the Philippines. TCcSDE Public respondents, on the other hand, include the Department of Social Welfare and Development (DSWD), the Department of Health (DOH), the Department of Finance (DOF), the Department of Justice (DOJ), and the Department of Interior and Local Government (DILG) which have been specifically tasked to monitor the drugstores' compliance with the law; promulgate the implementing rules and regulations for the effective implementation of the law; and prosecute and revoke the licenses of erring drugstore establishments. The antecedents are as follows: On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432, 3 was signed into law by President Gloria MacapagalArroyo and it became effective on March 21, 2004. Section 4 (a) of the Act states: SEC. 4.Privileges for the Senior Citizens. The senior citizens shall be entitled to the following: (a)the grant of twenty percent (20%) discount from all establishments relative to the utilization of services in hotels and similar lodging establishments, restaurants and recreation centers, and purchase of medicines in all establishments for the exclusive use or enjoyment of senior citizens, including funeral and burial services for the death of senior citizens; xxx xxx xxx The establishment may claim the discounts granted under (a), (f), (g) and (h) as tax deduction based on the net cost of the goods sold or services rendered: Provided, That the cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted. Provided, further, That the total amount of the claimed tax deduction net of value added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code, as amended. 4 On May 28, 2004, the DSWD approved and adopted the Implementing Rules and Regulations of R.A. No. 9257, Rule VI, Article 8 of which states: Article 8.Tax Deduction of Establishments. The establishment may claim the discounts granted underRule V, Section 4 Discounts for Establishments; 5 Section 9, Medical and Dental Services in Private Facilities[,] 6 and Sections 10 7 and 11 8 Air, Sea and Land Transportation as tax deduction based on the net cost of the goods sold or services rendered. Provided, That the cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted; Provided, further, That the total amount of the claimed tax deduction net of value added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code, as amended; Provided, finally, that the implementation of the tax deduction shall be subject to the Revenue Regulations to be

issued by the Bureau of Internal Revenue (BIR) and approved by the Department of Finance (DOF). 9 DSITEH On July 10, 2004, in reference to the query of the Drug Stores Association of the Philippines (DSAP) concerning the meaning of a tax deduction under the Expanded Senior Citizens Act, the DOF, through Director IV Ma. Lourdes B. Recente, clarified as follows: 1)The difference between the Tax Credit (under the Old Senior Citizens Act) and Tax Deduction (under the Expanded Senior Citizens Act). 1.1.The provision of Section 4 of R.A. No. 7432 (the old Senior Citizens Act) grants twenty percent (20%) discount from all establishments relative to the utilization of transportation services, hotels and similar lodging establishment, restaurants and recreation centers and purchase of medicines anywhere in the country, the costs of which may be claimed by the private establishments concerned as tax credit. Effectively, a tax credit is a peso-for-peso deduction from a taxpayer's tax liability due to the government of the amount of discounts such establishment has granted to a senior citizen. The establishment recovers the full amount of discount given to a senior citizen and hence, the government shoulders 100% of the discounts granted. It must be noted, however, that conceptually, a tax credit scheme under the Philippine tax system, necessitates that prior payments of taxes have been made and the taxpayer is attempting to recover this tax payment from his/her income tax due. The tax credit scheme under R.A. No. 7432 is, therefore, inapplicable since no tax payments have previously occurred. 1.2.The provision under R.A. No. 9257, on the other hand, provides that the establishment concerned may claim the discounts under Section 4 (a), (f), (g) and (h) as tax deduction from gross income, based on the net cost of goods sold or services rendered. Under this scheme, the establishment concerned is allowed to deduct from gross income, in computing for its tax liability, the amount of discounts granted to senior citizens. Effectively, the government loses in terms of foregone revenues an amount equivalent to the marginal tax rate the said establishment is liable to pay the government. This will be an amount equivalent to 32% of the twenty percent (20%) discounts so granted. The establishment shoulders the remaining portion of the granted discounts. It may be necessary to note that while the burden on [the] government is slightly diminished in terms of its percentage share on the discounts granted to senior citizens, the number of potential establishments that may claim tax deductions, have however, been broadened. Aside from the establishments that may claim tax credits under the old law, more establishments were added under the new law such as: establishments providing medical and dental services, diagnostic and laboratory services, including professional fees of attending doctors in all private hospitals and medical facilities, operators of domestic air and sea transport services, public railways and skyways and bus transport services. cDaEAS A simple illustration might help amplify the points discussed above, as follows: Tax DeductionTax Credit Gross Salesx x x x x xx x x x x x Less: Cost of goods soldx x x x xx x x x x Net Salesx x x x x xx x x x x x

Less: Operating Expenses: Tax Deduction on Discountsx x x x-Other deductions:x x x xx x x x Net Taxable Incomex x x x xx x x x x Tax Duex x xx x x Less: Tax Credit--x x Net Tax Due--x x As shown above, under a tax deduction scheme, the tax deduction on discounts was subtracted from Net Sales together with other deductions which are considered as operating expenses before the Tax Due was computed based on the Net Taxable Income. On the other hand, under a tax credit scheme, the amount of discounts which is the tax credit item, was deducted directly from the tax due amount. 10 Meanwhile, on October 1, 2004, Administrative Order (A.O.) No. 171 or the Policies and Guidelines to Implement the Relevant Provisions of Republic Act 9257, otherwise known as the "Expanded Senior Citizens Act of 2003 " 11 was issued by the DOH, providing the grant of twenty percent (20%) discount in the purchase of unbranded generic medicines from all establishments dispensing medicines for the exclusive use of the senior citizens. On November 12, 2004, the DOH issued Administrative Order No. 177 12 amending A.O. No. 171. Under A.O. No. 177, the twenty percent discount shall not be limited to the purchase of unbranded generic medicines only, but shall extend to both prescription and non-prescription medicines whether branded or generic. Thus, it stated that "[t]he grant of twenty percent (20%) discount shall be provided in the purchase of medicines from all establishments dispensing medicines for the exclusive use of the senior citizens". Petitioners assail the constitutionality of Section 4 (a) of the Expanded Senior Citizens Act based on the following grounds: 13 1)The law is confiscatory because it infringes Art. III, Sec. 9 of the Constitution which provides that private property shall not be taken for public use without just compensation; EAcHCI 2)It violates the equal protection clause (Art. III, Sec. 1) enshrined in our Constitution which states that "no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied of the equal protection of the laws;" and 3)The 20% discount on medicines violates the constitutional guarantee in Article XIII, Section 11 that makes "essential goods, health and other social services available to all people at affordable cost." 14 Petitioners assert that Section 4 (a) of the law is unconstitutional because it constitutes deprivation of private property. Compelling drugstore owners and establishments to grant the discount will result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5% to 10% on branded medicines; and 2) the law failed to provide a scheme whereby drugstores will be justly compensated for the discount.

Examining petitioners' arguments, it is apparent that what petitioners are ultimately questioning is the validity of the tax deduction scheme as a reimbursement mechanism for the twenty percent (20%) discount that they extend to senior citizens.

Based on the afore-stated DOF Opinion, the tax deduction scheme does not fully reimburse petitioners for the discount privilege accorded to senior citizens. This is because the discount is treated as a deduction, a tax-deductible expense that is subtracted from the gross income and results in a lower taxable income. Stated otherwise, it is an amount that is allowed by law 15 to reduce the income prior to the application of the tax rate to compute the amount of tax which is due. 16 Being a tax deduction, the discount does not reduce taxes owed on a peso for peso basis but merely offers a fractional reduction in taxes owed. Theoretically, the treatment of the discount as a deduction reduces the net income of the private establishments concerned. The discounts given would have entered the coffers and formed part of the gross sales of the private establishments, were it not for R.A. No. 9257. The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for public use or benefit. 17 This constitutes compensable taking for which petitioners would ordinarily become entitled to a just compensation. TIcAaH Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker's gain but the owner's loss. The word just is used to intensify the meaning of the wordcompensation, and to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. 18 A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would not meet the definition of just compensation. 19 Having said that, this raises the question of whether the State, in promoting the health and welfare of a special group of citizens, can impose upon private establishments the burden of partly subsidizing a government program. The Court believes so. The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building, and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society. 20 The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself. Thus, the Act provides: SEC. 2.Republic Act No. 7432 is hereby amended to read as follows: SECTION 1. Declaration of Policies and Objectives. Pursuant to Article XV, Section 4 of the Constitution, it is the duty of the family to take care of its elderly members while the State may design programs of social security for them. In addition to this, Section 10 in the Declaration of Principles and State Policies provides: "The State shall provide social justice in all phases of national development." Further, Article XIII, Section 11, provides: "The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women and children." Consonant with these constitutional principles the following are the declared policies of this Act: xxx xxx xxx (f)To recognize the important role of the private sector in the improvement of the welfare of senior citizens and to actively seek their partnership. 21 DAEIHT To implement the above policy, the law grants a twenty percent discount to senior citizens for medical and dental services, and diagnostic and laboratory fees; admission fees charged by theaters, concert halls, circuses, carnivals, and other similar places of culture, leisure and amusement; fares for domestic land, air and sea travel; utilization of services in hotels and similar lodging establishments, restaurants and recreation centers; and purchases of medicines for the exclusive use or enjoyment of senior citizens. As a form of reimbursement, the law provides that business establishments extending the twenty percent discount to senior citizens may claim the discount as a tax deduction.

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general welfare for its object. Police power is not capable of an exact definition, but has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response to conditions and circumstances, thus assuring the greatest benefits. 22 Accordingly, it has been described as "the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs." 23 It is "[t]he power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." 24 For this reason, when the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare. 25 Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its nullification in view of the presumption of validity which every law has in its favor. 26 Given these, it is incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their business, because petitioners have not taken time to calculate correctly and come up with a financial report, so that they have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage. 27 In treating the discount as a tax deduction, petitioners insist that they will incur losses because, referring to the DOF Opinion, for every P1.00 senior citizen discount that petitioners would give, P0.68 will be shouldered by them as only P0.32 will be refunded by the government by way of a tax deduction. cIDHSC To illustrate this point, petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an example. According to the latter, it acquires Norvasc from the distributors at P37.57 per tablet, and retails it at P39.60 (or at a margin of 5%). If it grants a 20% discount to senior citizens or an amount equivalent to P7.92, then it would have to sell Norvasc at P31.68 which translates to a loss from capital of P5.89 per tablet. Even if the government will allow a tax deduction, only P2.53 per tablet will be refunded and not the full amount of the discount which is P7.92. In short, only 32% of the 20% discount will be reimbursed to the drugstores. 28 Petitioners' computation is flawed. For purposes of reimbursement, the law states that the cost of the discount shall be deducted from gross income, 29 the amount of income derived from all sources before deducting allowable expenses, which will result in net income. Here, petitioners tried to show a loss on a per transaction basis, which should not be the case. An income statement, showing an accounting of petitioners' sales, expenses, and net profit (or loss) for a given period could have accurately reflected the effect of the discount on their income. Absent any financial statement, petitioners cannot substantiate their claim that they will be operating at a loss should they give the discount. In addition, the computation was erroneously based on the assumption that their customers consisted wholly of senior citizens. Lastly, the 32% tax rate is to be imposed on income, not on the amount of the discount. Furthermore, it is unfair for petitioners to criticize the law because they cannot raise the prices of their medicines given the cutthroat nature of the players in the industry. It is a business decision on the part of petitioners to peg the mark-up at 5%. Selling the medicines below acquisition cost, as alleged by petitioners, is merely a result of this decision. Inasmuch as pricing is a property right, petitioners cannot reproach the law for being oppressive, simply because they cannot afford to raise their prices for fear of losing their customers to competition. The Court is not oblivious of the retail side of the pharmaceutical industry and the competitive pricing component of the business. While the Constitution protects property rights, petitioners must accept the realities of business and the State, in the exercise of police power, can intervene in the operations of a business which may result in an impairment of property rights in the process. Moreover, the right to property has a social dimension. While Article XIII of the Constitution provides the precept for the protection of property, various laws and jurisprudence, particularly on agrarian reform and the regulation of contracts and public utilities, continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the promotion of public good. 30

Undeniably, the success of the senior citizens program rests largely on the support imparted by petitioners and the other private establishments concerned. This being the case, the means employed in invoking the active participation of the private sector, in order to achieve the purpose or objective of the law, is reasonably and directly related. Without sufficient proof that Section 4 (a) of R.A. No. 9257 is arbitrary, and that the continued implementation of the same would be unconscionably detrimental to petitioners, the Court will refrain from quashing a legislative act. 31

WHEREFORE, the petition is DISMISSED for lack of merit. IDEScC No costs. SO ORDERED.

Puno, C.J., Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia, Velasco, Jr. and Nachura, JJ., concur. Quisumbing, J., is on official leave. Sandoval-Gutierrez, J., is on leave.

EN BANC [G.R. No. 148560. November 19, 2001.] JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

Agarin Verzola Hermoso & Layasen Law Offices, Saguisag Carao & Associates, Jose B. Flaminiano and Fortun Narvasa & Salazar for petitioner. The Solicitor General for respondents.
SYNOPSIS The Court affirmed the constitutionality of RA 7080, otherwise known as the Plunder Law, as amended by RA 7659. The Plunder Law contained ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Indeed, it can be understood that what the assailed statute punishes is the act of a public officer in amassing ill-gotten wealth of at least P50,000,000 through a series or combination of acts enumerated in the Plunder Law. Petitioner bewailed the failure of the law to provide statutory definitions of the terms used. The Court, however, ruled that the same will not render the law void and the words of the statute will be interpreted in their ordinary acceptation. Hence, petitioner's reliance on the "void-for-vagueness" doctrine is misplaced. That the Plunder Law requires only proof of pattern of the criminal acts showing unlawful scheme, the Court ruled that the same does not do away with the requirement of proving guilt beyond reasonable doubt. However, what the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass ill-gotten wealth.

SYLLABUS 1.POLITICAL LAW; LEGISLATION; PRESUMPTION OF CONSTITUTIONALITY. The whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. CADHcI 2.ID.; ID.; ID.; BURDEN OF PROOF WHEN LAW IS CHALLENGED. The onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain." 3.ID.; ID.; PLUNDER LAW; CONTAINS WELL-DEFINED PARAMETERS. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed. 4.ID.; ID.; ID.; TERMS USED; ABSENCE OF STATUTORY DEFINITION THEREOF DOES NOT RENDER LAW VOID; POPULAR MEANING GENERALLY APPLIED. Petitioner bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a technical or special legal meaning to those words. The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed. Further, that Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law. 5.ID.; ID.; ID.; ID.; WORDS "COMBINATION," "SERIES" AND "PATTERN"; ELUCIDATED. When the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a "series"

there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 of the Plunder Law. 6.ID.; ID.; ID.; "VOID-FOR-VAGUENESS" DOCTRINE; NOT APPLICABLE. Petitioner's reliance on the "void-forvagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage.

7.ID.; ID.; ID.; PROVISION IN SEC. 4 THAT ONLY PROOF OF PATTERN OF CRIMINAL ACTS SHOWING UNLAWFUL SCHEME IS REQUIRED; DOES NOT DO AWAY WITH PROOF BEYOND REASONABLE DOUBT. Petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. 8.ID.; ID.; ID.; ID.; ELUCIDATED. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond

reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00. A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. 9.ID.; ID.; ID.; ID.; "PATTERN," NOT AN ELEMENT OF CRIME AND DOES NOT AFFECT SEC. 4 PROVIDING FOR RULE OF EVIDENCE. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder"; and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. For purposes of establishing the crime of plunder . . . It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause. And implicit in that section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. DCcIaE 10.ID.; ID.; ID.; A CRIME MALUM IN SE. We agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says . . . "The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts." 11.ID.; ID.; ID.; CONSTITUTIONALITY OF PLUNDER LAW, UPHELD. Petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and

trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. MENDOZA, J., concurring opinion: 1.POLITICAL LAW; CONSTITUTIONAL LAW; PRESUMPTION OF CONSTITUTIONALITY OF A LEGISLATIVE ACT, WHEN APPLICABLE. Again, it should be noted that what the U.S. Supreme Court said is that "there may be narrower scope for the operation of the presumption of constitutionality" for legislation which comes within the first ten amendments to the American Federal Constitution compared to legislation covered by the Fourteenth Amendment Due Process Clause. The American Court did not say that such legislation is not to be presumed constitutional, much less that it is presumptively invalid, but only that a "narrower scope" will be given for the presumption of constitutionality in respect of such statutes. There is, therefore, no warrant for petitioner's contention that "the presumption of constitutionality of a legislative act is applicable only where the Supreme Court deals with facts regarding ordinary economic affairs, not where the interpretation of the text of the Constitution is involved." 2.ID.; ID.; ANTI-PLUNDER LAW; VALIDITY, CANNOT BE DETERMINED BY APPLYING THE TEST OF STRICT SCRUTINY IN FREE SPEECH CASES. Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose. But criminal statutes, like the Anti-Plunder Law, while subject to strict construction, are not subject to strict scrutiny. The two (i.e., strict construction and strict scrutiny) are not the same. The rule of strict construction is a rule of legal hermeneutics which deals with the parsing of statutes to determine the intent of the legislature. On the other hand, strict scrutiny is a standard of judicial review for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. It is set opposite such terms as "deferential review" and "intermediate review."

3.ID.; ID.; STATUTES; DEGREES OF STRICTNESS IN THEIR REVIEW. Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the government interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. Considering these degrees of strictness in the review of statutes, how many criminal laws can survive the test of strict scrutiny to which petitioner proposes to subject them? How many can pass muster if, as petitioner would have it, such statutes are not to be presumed constitutional? Above all, what will happen to the State's ability to deal with the problem of crimes, and, in particular, with the problem of graft and corruption in government, if criminal laws are to be upheld only if it is shown that there is a compelling governmental interest for making certain conduct criminal and if there is no other means less restrictive than that contained in the law for achieving such governmental interest? 4.ID.; ID.; ANTI-PLUNDER LAW; VOID-FOR-VAGUENESS AND OVERBREADTH DOCTRINES; FACIAL CHALLENGE, ALLOWED TO A VAGUE STATUTE AND TO ONE WHICH IS OVERBROAD DUE TO POSSIBLE EFFECT UPON PROTECTED SPEECH; RATIONALE, NOT APPLICABLE TO PENAL LAWS. Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of its validity. The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from

enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. 5.ID.; ID.; ID.; ID.; HAVE SPECIAL APPLICATION ONLY TO FREE SPEECH CASES AND INAPT FOR TESTING THE VALIDITY OF PENAL STATUTES. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." 6.ID.; ID.; ID.; DOCTRINES OF STRICT SCRUTINY, OVERBREADTH, AND VAGUENESS ARE TOOLS FOR TESTING ON THEIR FACES STATUTES IN FREE SPEECH CASES, NOT IN CRIMINAL STATUTES. In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. 7.ID.; ID.; ID.; "ON ITS FACE" INVALIDATION OF STATUTES MUST BE EMPLOYED SPARINGLY. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. . . . This is the reason "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged. cdtai 8.ID.; ID.; ID.; NO NEED TO SPECIFY HOW MANY ACTS ARE NEEDED IN ORDER TO HAVE A "COMBINATION" OR A "SERIES." Petitioner contends that the phrase "combination or series of overt, or criminal acts" in 1(d) and 2 should state how many acts are needed in order to have a "combination" or a "series." It is not really required that this be specified. . . . Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To the contrary, Senators Gonzales and Taada voted in favor of the bill on its third and final reading on July 25, 1989. The ordinary meaning of the term "combination" as the "union of two things or acts" was adopted, although in the case of "series," the senators agreed that a repetition of two or more times of the same thing or act would suffice, thus departing from the ordinary meaning of the word as "a group of usually three or more things or events standing or succeeding in order and having a like relationship to each other," or "a spatial or temporal succession of persons or things," or "a group that has or admits an order of arrangement exhibiting progression.". . . Thus, resort to the deliberations in Congress will readily reveal that the word "combination" includes at least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation (1(d)(1)) and taking undue advantage of official position (1(d)(6)). On the other hand, "series" is used when the offender commits the same overt or criminal act more than once. There is no plunder if only one act is proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the figure fixed by the law for the offense (now P50,000,000.00). The overt or criminal acts need not be joined or separated in space or time, since the law does not make such a qualification. It is enough that the prosecution proves that a public officer, by himself or in connivance with others, amasses wealth amounting to at least P50 million by committing two or more overt or criminal acts. 9.ID.; ID.; ID.; THE PHRASE "SERIES OF ACTS OR TRANSACTIONS," NOT VAGUE; SIMILAR PROVISION HAS BEEN IN THE RULES OF COURT SINCE 1940. Petitioner also contends that the phrase "series of acts or transactions" is the subject of conflicting decisions of various Circuit Courts of Appeals in the United States. It turns out that the decisions

concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which provides: (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged on each count. The fact that there is a conflict in the rulings of the various courts does not mean that Rule 8(b) is void for being vague but only that the U.S. Supreme Court should step in, for one of its essential functions is to assure the uniform interpretation of federal laws. We have a similar provision in Rule 3, 6 of the 1997 Code of Civil Procedure. It reads: SEC. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. This provision has been in our Rules of Court since 1940 but it has never been thought of as vague. It will not do, therefore, to cite the conflict of opinions in the United States as evidence of the vagueness of the phrase when we do not have any conflict in this country.

10.ID.; ID.; ID.; NOT NECESSARY TO PROVE EACH AND EVERY CRIMINAL ACT DONE IN FURTHERANCE OF THE SCHEME OR CONSPIRACY AS LONG AS THOSE PROVEN SHOWED A PATTERN INDICATING THE SCHEME OR CONSPIRACY. A "pattern of overt or criminal acts" is required in 4 to prove "an unlawful scheme or conspiracy." In such a case, it is not necessary to prove each and every criminal act done in furtherance of the scheme or conspiracy so long as those proven show a pattern indicating the scheme or conspiracy. In other words, when conspiracy is charged, there must be more than a combination or series of two or more acts. There must be several acts showing a pattern which is "indicative of the overall scheme or conspiracy." As Senate President Salonga explained, if there are 150 constitutive crimes charged, it is not necessary to prove beyond reasonable doubt all of them. If a pattern can be shown by proving, for example, 10 criminal acts, then that would be sufficient to secure conviction. 11.ID.; ID.; ID.; PRESENTS ONLY PROBLEMS OF STATUTORY CONSTRUCTION, NOT VAGUENESS OR OVERBREADTH. As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory construction, not vagueness or overbreadth. In Primicias vs. Fugoso, an ordinance of the City of Manila, prohibiting the holding of parades and assemblies in streets and public places unless a permit was first secured from the city mayor and penalizing its violation, was construed to mean that it gave the city mayor only the power to specify the streets and public places which can be used for the purpose but not the power to ban absolutely the use of such places. A constitutional doubt was thus resolved through a limiting construction given to the ordinance. Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and the Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of the vagueness of the statute and, therefore, a ground for its invalidation. For sometime it was thought that under Art. 134 of the Revised Penal Code convictions can be had for the complex crime of rebellion with murder, arson, and other common crimes. The question was finally resolved in 1956 when this Court held that there is no such complex crime because the common crimes were absorbed in rebellion. The point is that Art. 134 gave rise to a difference of opinion that nearly split the legal profession at the time, but no one thought Art. 134 to be vague and, therefore, void. Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with the aid of the canons of construction, the void for vagueness doctrine has no application. 12.ID.; ID.; ID.; PLUNDER, A MALUM IN SE, REQUIRING PROOF OF CRIMINAL INTENT. Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive crimes are mala in se the element of mens reamust be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. 13.ID.; ID.; ID.; MENS REA, AN ELEMENT OF PLUNDER SINCE THE DEGREE OF RESPONSIBILITY OF THE OFFENDER IS DETERMINED BY HIS CRIMINAL INTENT. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officers in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."

14.ID.; ID.; ID.; THAT THE CRIME OF PLUNDER IS A MALUM IN SE PROVED BY ITS INCLUSION BY CONGRESS AS AMONG THE HEINOUS CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH. Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. 15.ID.; ID.; ID.; ID.; LEGISLATIVE DECLARATION IN R.A. NO. 7659 THAT PLUNDER IS A HEINOUS OFFENSE IMPLIES THAT IT IS A MALUM IN SE. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. 16.ID.; ID.; ID.; QUANTUM OF PROOF REQUIRED TO PROVE PREDICATE CRIMES IN PLUNDER IS THE SAME AS THAT REQUIRED IF SEPARATELY PROSECUTED. We have explained why, contrary to petitioner's contention, the quantum of proof required to prove the predicate crimes in plunder is the same as that required were they separately prosecuted. 17.ID.; ID.; ID.; PENALTY; LEGISLATURE VIEWED PLUNDER AS A CRIME AS SERIOUS AS ROBBERY WITH HOMICIDE OR RAPE WITH HOMICIDE PUNISHABLE BY RECLUSION PERPETUA TO DEATH BY PUNISHING IT WITH THE SAME PENALTY. But this is also the case whenever other special complex crimes are created out of two or more existing crimes. For example, robbery with violence against or intimidation of persons under Art. 294, par. 5 of the Revised Penal Code is punished with prision correccional in its maximum period (4 years, 2 months, and 1 day) toprision mayor in its medium period (6 years and 1 day to 8 years). Homicide under Art. 249 of the same Code is punished with reclusion temporal (12 years and 1 day to 20 years). But when the two crimes are committed on the same occasion, the law treats them as a special complex crime of robbery with homicide and provides the penalty ofreclusion perpetua to death for its commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal Code is reclusion perpetua, while that for homicide under Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet, when committed on the same occasion, the two are treated as one special complex crime of rape with homicide and punished with a heavier penalty of reclusion perpetua to death. Obviously, the legislature views plunder as a crime as serious as robbery with homicide or rape with homicide by punishing it with the same penalty. 18.ID.; ID.; ID.; NOT A REGULATION OF SPEECH, BUT A CRIMINAL STATUTE DESIGNED TO COMBAT GRAFT AND CORRUPTION. But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to combat graft and corruption, especially those committed by highly-placed public officials. As conduct and not speech is its object, the Court cannot take chances by examining other provisions not before it without risking vital interests of society. Accordingly, such statute must be examined only "as applied" to the defendant and, if found valid as to him, the statute as a whole should not be declared unconstitutional for overbreadth or vagueness of its other provisions. ACTIcS PANGANIBAN, J., separate opinion: 1.CRIMINAL LAW; REPUBLIC ACT 7080 (PLUNDER LAW); ELEMENTS OF THE CRIME. The Anti-Plunder Law more than adequately answers the question "What is the violation?" Indeed, to answer this question, any law student using basic knowledge of criminal law will refer to the elements of the crime, which in this case are plainly and certainly spelled out in a straightforward manner in Sections 2 and 1 (d) thereof. Those elements are: 1. The offender is a public officer acting by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons. 2. The offender amasses, accumulates or acquires ill-gotten wealth. 3. The aggregate amount or total value of the ill-gotten wealth so amassed, accumulated or acquired is at leastfifty million pesos (P50,000,000.00). 4. Such ill-gotten wealth defined as any asset, property, business enterprise or material possession of any of the aforesaid persons (the persons within the purview of Section 2, RA 7080) has been acquired directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (i) through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; (ii) by receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; (iii) by the illegal or fraudulent conveyance or disposition of assets belonging to the national government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; (iv) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the

promise of future employment in any business enterprise or undertaking; (v) by establishing agricultural, industrial or commercial monopolies or other combination and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (vi) by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

2.ID.; ID.; ABSENCE OF STATUTORY DEFINITIONS OF WORDS USED IN A STATUTE WILL NOT RENDER THE LAW "VOID FOR VAGUENESS," IF THE MEANINGS OF SUCH WORDS CAN BE DETERMINED THROUGH THE JUDICIAL FUNCTION OF CONSTRUCTION. Citing People v. Nazario, petitioner adds that "a statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application." I say, however, that in that very case cited by petitioner, the Court cautioned that "the act (or law) must be utterly vague on its face." When it can be "clarified either by a saving clause or by construction," the law cannot be decreed as invalid. In other words, the absence of statutory definitions of words used in a statute will not render the law "void for vagueness," if the meanings of such words can be determined through the judicial function of construction. 3.ID.; ID.; SPECIFIC NUMBER OR PERCENTAGE NOT ALWAYS NECESSARY. As pointed out during the Oral Argument on September 18, 2001, the crime of plunder can be committed by a public officer acting alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of Plunder ; Penalties. Any public officer who, by himself or in connivance with . . . ." Thus, the insistence on a mathematical specification or precise quantification is essentially without basis. And lest anyone believe that the Anti-Plunder Law is unusual in this respect, let me just recall that the RICO law, to which petitioner made repeated references in his Amended Petition, can likewise be violated by a single individual. 4.ID.; ID.; NOT OPPRESSIVE OR ARBITRARY. Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe penalty on a combination or series of the offenses enumerated in Section 1(d) of the law, than would otherwise be imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly pointed out in his interpellation during the Oral Argument, the Anti-Plunder Law is merely employing a familiar technique or feature of penal statutes, when it puts together what would otherwise be various combinations of traditional offenses already proscribed by existing laws and attaching thereto higher or more severe penalties than those prescribed for the same offenses taken separately. 5.ID.; ID.; INNOCENT ACTS NOT PENALIZED. The claim of "innocent acts" is possible only because items 4 and 5 have been taken completely out of context and read in isolation instead of in relation to the other provisions of the same law, particularly Section 2. The above-enumerated acts, means or similar schemes must be understood as having reference to or connection with the acquisition of ill-gotten wealth by a public officer, by himself or in connivance with others. Those acts are therefore not innocent acts. Neither are those prohibitions new or unfamiliar. The proscribed acts under item 4, for instance, may to some extent be traced back to some of the prohibitions in RA 3019 (the Anti-Graft Law). On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal Code's interdiction against monopolies and combinations in restraint of trade. Clearly, the acts dealt with in Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that petitioner would have us mistake them for. 6.ID.; ID.; "PATTERN OF OVERT OR CRIMINAL ACTS"; NOT AN ESSENTIAL OR SUBSTANTIVE ELEMENT OF THE CRIME. Petitioner, in line with his "void for vagueness" attack on RA 7080, faults the statute for failing to provide a definition of the phrase a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy used in Section 4 of the law. This definition is crucial since, according to him, such pattern is an essential element of the crime of plunder. A plain reading of the law easily debunks this contention. First, contrary to petitioner's suggestions, such pattern of overt or criminal acts and so on is not and should not be deemed an essential or substantive element of the crime of plunder. It is possible to give full force and effect to RA 7080 without applying Section 4 an accused can be charged and convicted under the Anti-Plunder Law without resorting to that specific provision. After all, the heading and the text of Section 4, leave no room for doubt that it is not substantive in nature. 7.ID.; ID.; PLUNDER INVOLVES NOT JUST THIEVERY BUT ECONOMIC DEPREDATION WHICH AFFECTS NOT JUST PRIVATE PARTIES OR PERSONAL INTEREST BUT THE NATION AS A WHOLE. As can be gleaned from the legislative deliberations, the Plunder Law was enacted to curb the "despoliation of the National Treasury by some public officials who have held the levers of power" and to penalize "this predatory act which has reached unprecedented heights and has been developed by its practitioners to a high level of sophistication during the past dictatorial regime." Viewed broadly, "plunder involves not just plain thievery but economic depredation which affects not just private parties or personal

interests but the nation as a whole." Invariably, plunder partakes of the nature of a "a crime against national interests which must be stopped, and if possible, stopped permanently." 8.ID.; ID.; NO PATENT AND CLEAR CONFLICT WITH THE CONSTITUTION. The law must be proven to be clearly and unequivocally repugnant to the Constitution before this Court may declare its unconstitutionality. To strike down the law, there must be a clear showing that what the fundamental law prohibits, the statute allows to be done. To justify the nullification of the law, there must be a clear, unequivocal breach of the Constitution; not a doubtful, argumentative implication. Of some terms in the law which are easily clarified by judicial construction, petitioner has, at best, managed merely to point out alleged ambiguities. Far from establishing, by clear and unmistakable terms, any patent and glaring conflict with the Constitution, the constitutional challenge to the Anti-Plunder Law must fail. For just as the accused is entitled to the presumption of innocence in the absence of proof beyond reasonable doubt, so must a law be accorded the presumption of constitutionality without the same requisite quantum of proof. 9.ID.; ID.; QUANTUM OF EVIDENCE REQUIRED IN CRIMINAL CASES NOT LOWERED BY THE LAW. First, petitioner's allegation as to the meaning and implications of Section 4 can hardly be taken seriously, because it runs counter to certain basic common sense presumptions that apply to the process of interpreting statutes; that in the absence of evidence to the contrary, it will be presumed that the legislature intended to enact a valid, sensible and just law; that the law-making body intended right and justice to prevail; and that the legislature aimed to impart to its enactments such meaning as would render them operative and effective and prevent persons from eluding or defeating them. Second, petitioner's allegation is contradicted by the legislative Records that manifest the real intent behind Section 4, as well as the true meaning and purpose of the provision therein. This intent is carefully expressed by the words of Senate President Salonga: "Senate Pres. Salonga. Is that if there are let's say 150 crimes all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you need not prove all of those beyond reasonable doubt. If you can

prove by pattern, let's say 10, but each must be proved beyond reasonable doubt, you do not have to prove 150 crimes. That's the meaning of this."

10.ID.; ID.; THE INDICATIVE PATTERN MUST BE PROVEN BEYOND REASONABLE DOUBT. Nevertheless, it should be emphasized that the indicative pattern must be proven beyond reasonable doubt . To my mind, this means that the prosecution's burden of proving the crime of plunder is, in actuality, much greater than in an ordinary criminal case. The prosecution, in establishing a pattern of overt or criminal acts, must necessarily show a combination or series of acts within the purview of Section 1(d) of the law. These acts which constitute the combination or series must still be proven beyond reasonable doubt. On top of that, the prosecution must establish beyond reasonable doubt suchpattern to overt or criminal acts indicative of the overall scheme or conspiracy, as well as all the other elements thereof. 11.ID.; ID.; SECTION 4 OF THE LAW PERTAINS ONLY TO A RULE ON EVIDENCE OR TO A PROCEDURAL MATTER THAT DOES NOT BEAR UPON OR FORM ANY PART OF THE ELEMENTS OF PLUNDER AND THE COURT MAY DECLARE THE SAME UNCONSTITUTIONAL AND STRIKE IT OFF THE STATUTE WITHOUT NECESSARILY AFFECTING THE LEGISLATIVE INTENT. Even granting arguendo that Section 4 of the Anti-Plunder Law suffers from some constitutional infirmity, the statute may nonetheless survive the challenge of constitutionality in its entirety. Considering that this provision pertain only to a rule on evidence or to a procedural matter that does not bear upon or form any part of the elements of the crime of plunder, the Court may declare the same unconstitutional and strike it off the statute without necessarily affecting the essence of the legislative enactment. For even without the assailed provision, the law can still stand as a valid penal statute inasmuch as the elements of the crime, as well as the penalties therein, may still be clearly identified or sufficiently derived from the remaining valid portions of the law. This finds greater significance when one considers that Section 7 of the law provides for a separability clause declaring the validity, the independence and the applicability of the other remaining provisions, should any other provision of the law be held invalid or unconstitutional. aScITE 12.ID.; ID.; REGARDLESS OF WHETHER PLUNDER IS CLASSIFIED AS MALA PROHIBITA OR IN SE, IT IS THE PREROGATIVE OF THE LEGISLATURE TO DETERMINE WHETHER CERTAIN ACTS ARE CRIMINAL IRRESPECTIVE OF THE ACTUAL INTENT OF THE PERPETRATOR. While I simply cannot agree that the Anti-Plunder Law eliminatedmens rea from the component crimes of plunder, my bottom-line position still is: regardless of whether plunder is classified as mala prohibita or in se, it is the prerogative of the legislature which is undeniably vested with the authority to determine whether certain acts are criminal irrespective of the actual intent of the perpetrator.

13.ID.; ID.; MATTER OF CLASSIFICATION IS NOT SIGNIFICANT, THE KEY IS WHETHER THE SAME BURDEN OF PROOF THAT IS PROOF BEYOND REASONABLE DOUBT WOULD APPLY. Without being facetious, may I say that, unlike the act

of discharging a gun, the acts mentioned in Section 1(d) bribery, conversion, fraudulent conveyance, unjust enrichment and the like cannot be committed sans criminal intent. And thus, I finally arrive at a point of agreement with petitioner: that the acts enumerated in Section 1(d) are by their nature mala in se, and most of them are in fact defined and penalized as such by the Revised Penal Code. Having said that, I join the view that when we speak of plunder, we are referring essentially to two or more instances of mala in se constituting one malum prohibitum. Thus, there should be no difficulty if each of the predicate acts be proven beyond reasonable doubt as mala in se, even if the defense of lack of intent be taken away as the Solicitor General has suggested. In brief, the matter of classification is not really significant, contrary to what petitioner would have us believe. The key, obviously, is whether the same burden of proof proof beyond reasonable doubt would apply. 14.POLITICAL LAW; JUDICIAL DEPARTMENT; EMPOWERED TO CONSTRUE AND APPLY THE LAW. At all events, let me stress that the power to construe law is essentially judicial. To declare what the law shall be is a legislative power, but to declare what the law is or has been is judicial. Statutes enacted by Congress cannot be expected to spell out with mathematical precision how the law should be interpreted under any and all given situations. The application of the law will depend on the facts and circumstances as adduced by evidence which will then be considered, weighed and evaluated by the courts. Indeed, it is the constitutionally mandated function of the courts to interpret, construe and apply the law as would gives flesh and blood to the true meaning of legislative enactments. KAPUNAN, J., dissenting opinion: 1.POLITICAL LAW; CRIMINAL STATUTE; PRESUMED CONSTITUTIONAL; EXCEPTION. Every law enacted by Congress enjoys a presumption of constitutionality, and the presumption prevails in the absence of contrary evidence. A criminal statute is generally valid if it does not violate constitutional guarantees of individual rights. Conversely, when a

constitutionally protected right of an individual is in danger of being trampled upon by a criminal statute, such law must be struck down for being void.

2.ID.; ID.; CLARITY AND DEFINITENESS; REQUIRED; RATIONALE. One of the fundamental requirements imposed by the Constitution upon criminal statutes is that pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of this requirement have been declared unconstitutional for being vague. This "void-for-vagueness" doctrine is rooted in the basic concept of fairness as well as the due process clause of the Constitution. The Constitution guarantees both substantive and procedural due process as well as the right of the accused to be informed of the nature and cause of the accusation against him. A criminal statute should not be so vague and uncertain that "men of common intelligence must necessarily guess as to its meaning and differ as to its application." 3.ID.; ID.; ID.; "VOID-FOR-VAGUENESS" DOCTRINE; CONSTRUED. There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to ensure that individuals are properly warned ex-ante of the criminal consequences of their conduct. This "fair notice" rationale was articulated in United States v. Harriss: The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory law enforcement. Vague laws are invariably "standardless" and as such, they afford too great an opportunity for criminal enforcement to be left to the unfettered discretion of police officers and prosecutors. Third, vague laws fail to provide sufficient guidance to judges who are charged with interpreting statutes. Where a statute is too vague to provide sufficient guidance, the judiciary is arguably placed in the position of usurping the proper function of the legislature by "making the law" rather than interpreting it. While the dictum that laws be clear and definite does not require Congress to spell out with mathematical certainty the standards to which an individual must conform his conduct, it is necessary that statutes provide reasonable standards to guide prospective conduct. And where a statute imposes criminal sanctions, the standard of certainty is higher . The penalty imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to death. Given such penalty, the standard of clarity and definiteness required of R.A. No. 7080 is unarguably higher than that of other laws. 4.ID.; ID.; ID.; ID.; APPLICATION THEREOF. A view has been proferred that "vagueness and overbreadth doctrines are not applicable to penal laws." These two concepts, while related, are distinct from each other. On one hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand, the "voidfor-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional rights. The fact that a particular criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed. As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to due process of law. Thus, as in this case that the "life, liberty and

property" of petitioner is involved, the Court should not hesitate to look into whether a criminal statute has sufficiently complied with the elementary requirements of definiteness and clarity. It is an erroneous argument that the Court cannot apply the vagueness doctrine to penal laws. Such stance is tantamount to saying that no criminal law can be challenged however repugnant it is to the constitutional right to due process . While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature's objective of protecting the public from socially harmful conduct, this should not prevent a vagueness challenge in cases where a penal statute is so indeterminate as to cause the average person to guess at its meaning and application. For if a statute infringing upon freedom of speech may be challenged for being vague because such right is considered as fundamental, with more reason should a vagueness challenge with respect to a penal statute be allowed since the latter involve deprivation of liberty, and even of life which, inarguably, are rights as important as, if not more than, free speech. 5.CRIMINAL LAW; R.A. NO. 7080 (PLUNDER LAW); CRIME OF PLUNDER, DEFINED. Sec. 2 of R.A. No. 7080 provides: Definition of the Crime of Plunder; Penalties. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No. 7659.) On the other hand, Section 4 states: Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. 6.ID.; ID.; "ILL-GOTTEN WEALTH"; DEFINED. Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise or material possession of any person within the purview of Section Two (2)" hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes: 1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combination and/or other combination and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

7.ID.; ID.; "COMBINATION" AND "SERIES"; USE THEREOF FAILED TO SATISFY STRICT REQUIREMENTS ON CLARITY AND DEFINITENESS. Although the law has no statutory definition of "combination" or "series," the majority is of the view that resort can be had to the ordinary meaning of these terms. Thus, Webster's Third New International Dictionary gives the meaning of "combination"; "the result or product or product of combining: a union or aggregate made of combining one thing with another." In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with another act falling under any other of the enumerated means may constitute the crime of plunder. With respect to the term "series," the majority states that it has been understood as pertaining to "two or more overt or criminal acts falling under the same category" as gleaned from the deliberations on the law in the House of Representatives and the Senate. . . . To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the strict requirements of the Constitution on clarity and definiteness. Note that the key element to the crime of plunder is that the public officer, by himself or in conspiracy with others, amasses, accumulates, or acquires "ill-gotten wealth" through a "combination or series of overt or criminal acts" as described in Section 1(d) of the law. Senator Gonzales, during the deliberations in the

Senate, already raised serious concern over the lack of a statutory definition of what constitutes "combination" or "series," consequently, expressing his fears that Section 2 of R.A. No. 7080 might be violative of due process. . . . The point raised by Senator Gonzales is crucial and well-taken. I share petitioner's observation that when penal laws enacted by Congress make reference to a term or concept requiring a quantitative definition, these laws are so crafted as to specifically state the exact number or percentage necessary to constitute the elements of a crime. . . . The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority, consisting mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of plunder. All that they indicate is that Congress seemingly intended to hold liable for plunder a person who: (1) commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits plunder by a series of overt criminal acts; or (2) commits at least one count of at least two of the acts mentioned in Section 1(d), in which case, such person commits plunder by a combination of overt criminal acts. Said discussions hardly provide a window as to the exact nature of this crime. . . . Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means enumerated in Section 1(d), and "series," to at least two counts of one of the modes under said section, the accused could be meted out the death penalty for acts which, if taken separately, i.e., not considered as part of the combination or series, would ordinarily result in the imposition of correctional penalties only. If such interpretation would be adopted, the Plunder Law would be so oppressive and arbitrary as to violate due process and the constitutional guarantees against cruel or inhuman punishment. The penalty would be blatantly disproportionate to the offense. ISTECA 8.ID.; ID.; PENALTY; VIOLATIVE OF SUBSTANTIVE DUE PROCESS. The argument that higher penalties may be imposed where two or more distinct criminal acts are combined and are regarded as special complex crime, i.e., rape with homicide, does not justify the imposition of the penalty of reclusion perpetua to death in case plunder is committed. Taken singly, rape is punishable by reclusion perpetua; and homicide, by reclusion temporal. Hence, the increase in the penalty imposed when these two are considered together as a special complex crime is not too far from the penalties imposed for each of the single offenses. In contrast, as shown by the examples above, there are instances where the component crimes of plunder, if taken separately, would result in the imposition of correctional penalties only; but when considered as forming part of a series or combination of acts constituting plunder, could be punishable by reclusion perpetua to death. The disproportionate increase in the penalty is certainly violative of substantive due process and constitute a cruel and inhuman punishment. It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the acquisition of property (by the accused himself or in connivance with others) "by any combination or series" of the "means" or "similar schemes" enumerated therein, which include the following: . . . 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other forms of interest or participation including the promise of future employment or any business enterprise or undertakings; 5. By establishing agricultural, industrial or commercial monopolies or other combination and/or implementation of decrees and orders intended to benefit particular persons or special interests; . . . The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They involve the exercise of the right to liberty and propertyguaranteed by Article III, Section 1 of the Constitution which provides that "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws." Receiving or accepting any shares of stock is not per se objectionable. It is in pursuance of civil liberty, which includes "the right of the citizen to be free to use his faculties in all lawful ways; . . . to earn his livelihood by any lawful calling; to pursue any avocation, and/or that purpose, to enter into all contracts which may be proper, necessary and essential to his carrying out these purposes to a successful conclusion. Nor is there any impropriety, immorality or illegality in establishing agricultural, industrial or commercial monopolies or other combination and/or implementation of decrees and orders even if they are intended to benefit particular persons or special interests. The phrases "particular persons" and "special interests" may well refer to the poor, the indigenous cultural communities, labor, farmers, fisherfolk, women, or those connected with education, science and technology, arts, culture and sports. In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are punishable because, as specifically defined therein, they are "on restraint of trade or commerce or to prevent by artificial means of free competition in the market, or the object is "to alter the price" of any merchandise "by spreading false rumors," or to manipulate market prices in restraint of trade. There are no similar elements of monopolies or combinations as described in the Plunder Law to make the acts wrongful. If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more" acts, and "combination as defined in the Webster's Third New International Dictionary is "the result or product of combining one thing with another," then, the commission of two or more acts falling under paragraphs (4) and (5) of Section 1(d) would make innocent acts protected by the Constitution as criminal, and punishable by reclusion perpetua to death. 9.ID.; ID.; PATTERN AS AN ESSENTIAL ELEMENT THEREOF; NOT PROPERLY DEFINED. It is a basic rule of statutory construction that to ascertain the meaning of a law, the same must be read in its entirety. Section 1 taken in relation to Section 4 suggests that there is something to plunder beyond simply the number of acts involved and that a grand scheme to amass, accumulate or acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2 pertain

only to the nature and quantitative means or acts by which a public officer, by himself or in connivance with other persons, "amasses, accumulates or acquires ill-gotten wealth." Section 4, on the other hand, requires the presence of elements other than those enumerated in Section 2 to establish that the crime of plunder has been committed because it speaks of the necessity to establish beyond reasonable doubt a "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this was acquired by any two or more of the acts described in Section 1(d); it is necessary that these acts constitute a "combination or series" of acts done in furtherance of "the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth," and which constitute "a person of overt or criminal acts indicative of the overall scheme or conspiracy." That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law in its entirety. It is that which would distinguish plunder from isolated criminal acts punishable under the Revised Penal Code and other laws, for without the existence a "pattern of overt or criminal acts indicative of the overall scheme or

conspiracy" to acquire ill-gotten wealth, a person committing several or even all of the acts enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted only for the specific crimes committed under the pertinent provisions of the Revised Penal Code or other laws. For this reason, I do not agree that Section 4 is merely a rule of

evidence or a rule of procedure. It does not become such simply because its caption states that it is, although its wording indicates otherwise. On the contrary, it is of substantive character because it spells out a distinctive element of the crime which has to be established, i.e., an overall unlawful "scheme or conspiracy" indicated by a "pattern of overt or criminal acts" or means or similar schemes "to amass, accumulate or acquire ill-gotten wealth." The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy," however, escapes me. As in "combination" and "series," R.A. No. 7080 does not provide a definition of "pattern" as well as "overall unlawful scheme." Reference to the legislative history of R.A. No. 7080 for guidance as to the meanings of these concepts would be unavailing, since the records of the deliberations in Congress are silent as to what the lawmakers mean by these terms. Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate. These words are defined as: pattern: an arrangement or order of things or activity. Scheme: design; project; plot. At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more) is necessary, this is not sufficient to constitute plunder. As stated earlier, without the element of "pattern" indicative of an "overall unlawful scheme," the acts merely constitute isolated or disconnected criminal offenses punishable by the Revised Penal Code or other special laws. The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a "pattern" or "any arrangement or order." It is not the number of acts but the relationship that they bear to each other or to some external organizing principle that renders them "ordered" or "arranged": A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of predicates is no guarantee that they fall into an arrangement or order. It is not the number of predicates but the relationship that they bear to each other or to some external organizing principle that renders them 'ordered' or 'arranged.' In any event, it is hardly possible that two predicate acts can form a pattern: The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance, two of anything will not generally form a 'pattern.' . . . Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in the United States. Their divergent conclusions have functioned effectively to create variant criminal offenses. This confusion has come about notwithstanding that almost all these state laws have respectively statutorily defined "pattern." In sharp contrast, R.A.No. 7080, as earlier pointed out, lacks such crucial definition. As to what constitutes pattern within the meaning of R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and judges. Neither the text of R.A. No. 7080 nor legislative history afford any guidance as to what factors may be considered in order to prove beyond reasonable doubt "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or "pertaining to two or more" and "combination" is the "result or product of combining." Whether two or more or at least three acts are involved, the majority would interpret the phrase "combinations" or "series" only in terms of number of acts committed. They entirely overlook or ignore Section 4 which requires "a pattern of overt of criminal acts indicative of the overall unlawful scheme or conspiracy" to convict.

10.ID.; ID.; PERSON WHO PARTICIPATES IN THE COMMISSION OF ONLY ONE OF THE COMPONENT CRIMES CONSTITUTING PLUNDER MAY BE LIABLE AS CO-PRINCIPAL. Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court." Both parties share the view that the law as it is worded makes it possible for a person who participates in the commission of only one of the component crimes constituting plunder to be liable as co-conspirator for plunder, not merely the component crime in which he participated. While petitioner concedes that it is easy to ascertain the penalty for an accomplice or accessory under R.A. No. 7080, such is not the case with respect to a co-principal of the accused. In other words, a person who conspires with the accused in the commission of only one of the component crimes may be

prosecuted as co-principal for the component crime, or as co-principal for the crime of plunder, depending on the interpretation of the prosecutor. The unfettered discretion effectively bestowed on law enforcers by the aforequoted clause in determining the liability of the participants in the commission of one or more of the component crimes of a charge for plunder undeniably poses the danger of arbitrary enforcement of the law. EHaCID 11.ID.; ID.; PRESCRIPTIVE PERIOD THEREOF; NOT CLEARLY STATED. Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in twenty (20) years. Considering that the law was designed to cover a "combination or series of overt or criminal acts," or "a pattern of overt or criminal acts," from what time shall the period of prescription be reckoned? From the first, second, third or last act of the series or pattern? What shall be the time gap between two succeeding acts? If the last act of a series or combination was committed twenty or more years after the next preceding one, would not the crime have prescribed, thereby resulting in the total extinction of criminal liability under Article 89(b) of the Revised Penal Code? In antithesis, the RICO law affords more clarity and definiteness in describing "pattern of racketeering activity" as "at least two acts of racketeering activity, one of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." The U.S. state statutes similarly provide specific time frames within which racketeering acts are committed. 12.ID.; ID.; SECTION 4 THEREOF ELIMINATES PROOF OF EACH AND EVERY COMPONENT CRIMINAL ACT OF PLUNDER AND LIMITS ITSELF TO ESTABLISHING PATTERN OF OVERT ACTS; EFFECT THEREOF. By its language, Section 4 eliminates proof of each and every component criminal act of plunder by the accused and limits itself to establishing just the pattern of overt or criminal acts indicative of unlawful scheme or conspiracy. The law, in effect, penalizes the accused on the basis of a proven scheme or conspiracy to commit plunder without the necessity of establishing beyond reasonable doubt each and every criminal act done by the accused in the crime of plunder. To quote Fr. Bernas again: "How can you have a 'series' of criminal acts if the elements that are supposed to constitute the series are not proved to be criminal?" Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done by the accused in the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being sufficient just to prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy, the Plunder Law effectively eliminated the mens rea or criminal intent as an element of the crime. Because of this, it is easier to convict for plunder and sentence the accused to death than to convict him for each of the component crimes otherwise punishable under the Revised Penal Code and other laws which are bailable offenses. The resultant absurdity strikes at the very heart of the constitutional guarantees of due process and equal protection. . . . Mens rea is asubstantive due process requirement under the Constitution, and this is a limitation on police power. Additionally, lack of mens rea or a clarifying scienter requirement aggravates the vagueness of a statute. 13.ID.; ID.; "MALA IN SE" AND "MALA PROHIBITA"; DISTINGUISHED; APPLICATION THEREOF. The facts that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does not necessarily make the same mala prohibita where criminal intent is not essential, although the term refers generally to acts made criminal by special laws. For there is a marked difference between the two. According to a well-known author on criminal law: There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft, rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute, such as illegal possession of firearms. Crimes mala in se are those so serious in their effects on society as to call for almost unanimous condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society. (Bouvir's Law Dictionary, Rawle's 3rd Revision) (1) In acts mala in se, the intent governs; but in those mala prohibita the only inquiry is, has the law been violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132) Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal possession of firearms. (People vs. Canosa, C.A., 45 O.G. 3953) (2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code. When the acts are inherently immoral, they are mala in se, even if punished by special laws. On the other hand, there are crimes in the Revised Penal Code which were originally defined and penalized by special laws. Among them are possession and use of opium, malversation, brigandage, and libel. The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are patently mala in se, even if punished by a special law and accordingly, criminal intent must clearly be established together with the other elements of the crime; otherwise, no crime is committed. By eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond reasonable doubt the component acts constituting plunder and imposes a lesser burden of proof on the prosecution, thus paving the way for the imposition of the penalty of reclusion perpetua to death on the accused, in plain violation of the due process and equal protection clauses of the Constitution. Evidently, the authority of the legislature to omit the element of scienter in the proof of a crime refers to regulatory measures in the exercise of police power, where the emphasis of the law is to secure a more orderly regulations of the offense of society, rather than the punishment of the crimes. So that in mala prohibita prosecutions, the element of criminal intent is a requirement for conviction and must be provided in the special law penalizing what are traditionally mala in se crimes.

14.ID.; ID.; RULE ON ESTOPPEL; MAY BE RESORTED TO ONLY AS A MEANS OF PREVENTING INJUSTICE; NOT PRESENT IN CASE AT BAR. The fact that one of petitioner's counsel was a co-sponsor of the Plunder Law and petitioner himself voted for its passage when he was still a Senator would not in any put him in estoppel to question its constitutionality. The rule on estoppel applies to question of fact, not of law. Moreover, estoppel should be resorted to only as a means of preventing injustice. To hold that petitioner is estopped from questioning the validity of R.A. No. 7080 because he had earlier voted for its passage would result in injustice not only to him, but to all others who may be held liable under this statute. In People vs. Vera, citing the U.S. case of Attorney General v. Perkins, the Court held: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation upon their government, a statute enacted by the people of Michigan is an adequate statute relied on in justification is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow. . . . The Court should not sanction the use of an equitable remedy to defeat the ends of justice by permitting a person to be deprived of his life and liberty under an invalid law. 15.ID.; ID.; AMBIGUITY THEREOF RUNS AFOUL OF DUE PROCESS CONCEPT; RATIONALE. Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to the felt need at the time that existing laws were inadequate to penalize the nature and magnitude of corruption that characterized a "previous regime." However, where the law, such as R.A. 7080, is so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork, the indefiniteness runs afoul of due process concepts which require that persons be given full notice of what to avoid, and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards. It obfuscates the mind to ponder that such an ambiguous law as R.A. No. 7080 would put on the balance the life and liberty of the accused against whom all the resources of the State are arrayed. It could be used as a tool against political enemies and a weapon of hate and revenge by whoever wields the levers of power.

PARDO, J., dissenting opinion: POLITICAL LAW; CONSTITUTIONAL LAW; PLUNDER LAW; AMENDMENTS THEREOF PRESCRIBING DEATH PENALTY UNCONSTITUTIONAL; SINCE LAW PENALIZES ACTS MALA IN SE, CHARGES MUST BE THE SPECIFIC ACTS ALLEGED IN VIOLATION OF LAW, COMMITTED WITH MALICE AND CRIMINAL INTENT; PROOF BEYOND REASONABLE DOUBT OF ALL ELEMENTS OF PLUNDER, INCLUDING COMPONENT CRIMES, REQUIRED. Hence, the amendments to the plunder law prescribing the death penalty therefor are unconstitutional. I am of the view that the plunder law penalizes acts that are mala in se, and consequently, the charges must be the specific acts alleged to be in violation of the law, committed with malice and criminal intent. At any rate, I venture the view that Section 4, R.A. No. 7080, must be interpreted as requiring proof beyond reasonable doubt of all the elements of plunder as prescribed in the law, including the elements of the component crimes, otherwise, the section will be unconstitutional. YNARES-SANTIAGO, J., dissenting opinion: 1.POLITICAL LAW; CONSTITUTIONAL LAW; PLUNDER LAW; VAGUE, UNCERTAIN AND BROAD. A reading of the Plunder Law immediately shows that it is phrased in a manner not susceptible to ready or clear understanding. In the desire to cover under one single offense of plunder every conceivable criminal activity committed by a high government official in the course of his duties, Congress has come out with a law unduly vague, uncertain and broad. 2.ID.; ID.; ID.; ID.; A STATUTE INVOLVING CRIMINAL PROSECUTION MUST BE DEFINITE TO BE VALID; A VAGUE OR OVERBROAD STATUTE VIOLATES THE DUE PROCESS CLAUSE. The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed in the context of freedom of speech and of the press. However, they apply equally, if not more so, to capital offenses. In the present case, what the law seeks to protect or regulate involves the deprivation of life itself and not merely the regulation of expression. In its early formulation, the overbreadth doctrine states that a governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. A statute, especially one involving criminal prosecution, must be definite to be valid. A statute is vague or overbroad, in violation of the due process clause, where its language does not convey sufficiently definite warning to the average person as to the prohibited conduct. A statute is unconstitutionally vague if people of common intelligence must necessarily guess at its meaning. It is not only prosecutors and judges who are concerned. The need for definiteness applies with greater force to the accused and those

in positions where opportunities for them to commit the proscribed offense are present. They must understand exactly what prohibited activity will be punished by capital punishment. Sadly, even the record of deliberations in Congress cited in the motion to quash shows that even the members of the Senate who are illustrious lawyers found the Plunder Law vague. 3.ID.; ID.; ID.; VOID-FOR-VAGUENESS INFIRMITY OF LAW BECOMES MORE APPARENT IF PROSCRIBED ACTIVITY IS "MISUSE OF PUBLIC FUNDS." Under the same paragraph of the Plunder Law, malversation is lumped with "misuse of public funds." Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement. The terms "abuse," "distortion," "misapplication," "mismanagement," "poor stewardship," "malpractice," "debasement," or "breach of trust," all conceivably fall under the generic term "misuse." Exactly when does an administrative offense of misuse become the capital crime of plunder? What degree of misuse is contemplated under the law? A penal law violates due process where inherently vague statutory language permits selective law enforcement. Under the Plunder Law, a crusading public officer who steps on too many important toes in the course of his campaign could be prosecuted for a capital offense, while for exactly the same acts, an official who tries to please everybody can be charged either administratively or for a much lighter offense. For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision mayor in its medium or minimum periods, prision correctional in its medium period, or prision mayor in its minimum period, depending on the manner of commission. Indirect bribery under Article 211 is punished with prision correccional in its medium and maximum periods. Under the Plunder Law, the penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes all the more apparent if the proscribed activity is "misuse of public funds." The prosecutor is given broad powers of selective law enforcement. For "misuse," exactly the same acts could be punished with death under the Plunder Law, or mere dismissal with prejudice to future government employment under the Civil Service Law. 4.ID.; ID.; ID.; PROVISION THEREOF ON "IMPLEMENTATION OF DECREES AND ORDERS INTENDED TO BENEFIT PARTICULAR PERSONS OR SPECIAL INTERESTS" CALLS FOR MORE SPECIFIC ELUCIDATION. The provision in the Plunder Law on "implementation of decrees and orders intended to benefit particular persons or special interests" also calls for more specific elucidation. If the only person benefited is himself, does that fall under "particular person?" Decrees and orders issued by a top government official may be intended to benefit certain segments of society such as farmers, manufacturers, residents of a geographical area and the like. If in the process a close relative acquires P50,000,000.00 because of development in that sector solely because of the decree and without lifting a finger, is that plunder? The vagueness can be better appreciated by referring to petitioner's arguments that the element of mens reain mala in se crimes has been abolished and the offenses have been converted to mala prohibita. If the guilty intent is eliminated, even innocent acts can be plunder. The law was not drafted for petitioner alone. It applies to all public officers. 5.ID.; ID.; ID.; CRIMINAL INTENT TO COMMIT THE CRIME NOT REQUIRED TO BE PROVED; VIOLATION OF SUBSTANTIVE DUE PROCESS AND STANDARDS OF FAIR PLAY. Early in the history of this Court, it ruled that in actsmala in se, the criminal intent governs. But in those acts mala prohibita, the only inquiry is: has the law been violated? Acts constituting malversation, estafa, and bribery are mala in se. The courts must inquire into the criminal intent, the evil nature or wrongful disposition behind the criminal acts. In mala prohibita crimes, there is a violation of a prohibitory law and the inquiry is, therefore, has the law been violated? In the crime of plunder, it is enough that the acts defining malversation or bribery are described. The court then proceeds to determine whether the acts fall under the prohibitory terms of the law. Criminal intent no longer has to be proved. The criminal intent to commit the crime is not required to be proved. The desire to benefit particular persons does not have to spring from criminal intent under the special law creating the crime of plunder. In malversation or bribery under the Revised Penal Code, the criminal intent is an important element of the criminal acts. Under the Plunder Law, it is enough that the acts are committed. Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se, this will not exonerate him under the crime mala prohibita. This violates substantive due process and the standards of fair play because mens rea is a constitutional guarantee under the due process clause. 6.ID.; ID.; ID.; ID.; DOING AWAY WITH THE ELEMENT OF MENS REA AND DEPRIVING ACCUSED OF DEFENSE OF CRIMINAL INTENT AS TO MALA IN SE COMPONENTS OF PLUNDER, ANATHEMA TO SUBSTANTIVE DUE PROCESS. By grafting several felonies, some mala in se and some mala prohibita, to constitute the crime of plunder and by doing away with the standard of proof beyond reasonable doubt for the component elements, the State would practically be given the judicial imprimatur to impose the extreme penalty of death on the basis of proof only of the overall pattern of overt or criminal acts showing unlawful scheme or conspiracy. This attempt of Congress to tip the scales of criminal justice in favor of the state by doing away with the element of mens rea and to pave the way for the accused to be convicted by depriving him of the defense of criminal intent as to mala in se components of plunder will be anathema to substantive

due process which insures "respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamental." 7.ID.; ID.; ID.; ID.; ID.; CIRCUMVENTS OBLIGATION OF PROSECUTION TO PROVE BEYOND REASONABLE DOUBT EVERY FACT NECESSARY TO CONSTITUTE THE CRIME; PROOF OF PATTERN OF OVERT ACTS SHOWING AN UNLAWFUL SCHEME OR CONSPIRACY IS MERELY REQUIRED. Equally disagreeable is the provision of the Plunder Law which does away with the requirement that each and every component of the criminal act of plunder be proved and instead limits itself to proving only a pattern of overt acts indicative of the unlawful scheme or conspiracy. In effect, the law seeks to penalize the accused only on the basis of a proven scheme or conspiracy, and does away with the rights of the accused insofar as the component crimes are concerned. In other words, R.A. No. 7080 circumvents the obligation of the prosecution to prove beyond reasonable doubt every fact necessary to constitute the crime of plunder, because the law requires merely proof of a pattern of overt acts showing an unlawful scheme or conspiracy. What aggravates matters on this point is that under controlling case law, conspiracy to defraud is not punishable under the Revised Penal Code. Cutting corners on the burden of proof is unconstitutional because the standard of reasonable doubt is part of the due process safeguard accorded an accused. The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

8.ID.; ID.; ID.; WHERE THE STATUTE HAS AN OVERBROAD SWEEP AND IT IS VAGUE, THE HAZARD OF LOSS OR IMPAIRMENT OF LIFE OR LIBERTY IS CRITICAL. Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or impairment of life or liberty is critical. The problem of vagueness is reduced or eliminated if the different schemes mentioned in the law used in the acquisition of ill-gotten wealth are prosecuted under existing penal law. The offenses are by their nature distinct and separate from each other and have acquired established meanings. Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses. So may the receipt of commissions, gifts, or kickbacks by higher officials in connection with government contracts. The four other methods or schemes mentioned in the law may be the object of separate penal statutes. 9.ID.; ID.; ID.; COURTS; SANDIGANBAYAN; EXPANSION OF THE COVERAGE OF THE LAW THROUGH THE USE OF PHRASES AS "OVER-ALL SCHEME" OR "GENERAL PLAN" AND SUPPLYING THE MISSING INGREDIENTS OF THE LAW BY CONSTRUCTION OF A VAGUE OR AMBIGUOUS PROVISION, NOT ALLOWED. The Sandiganbayan interprets the words "combination" and "series" of overt or criminal acts through terms found in American decisions like "pattern," "conspiracy," "over-all unlawful scheme," or "general plan of action or method." The above definitions are not found in the Plunder Law. The use of such phrases as "over-all scheme" or "general plan" indicates that the Sandiganbayan is expanding the coverage of the law through the use of ambiguous phrases capable of dual or multiple applications. When do two or three acts of the same offense of malversation constitute a "pattern," "a general plan of action," or an "over-all scheme?" Would one malversation in the first week of a public officer's tenure and another similar act six (6) years later become a "combination," a "pattern," or a "general plan of action?" I agree with petitioner's concern over the danger that the trial court may allow the specifications of details in an information to validate a statute inherently void for vagueness. An information cannot rise higher than the statute upon which it is based. Not even the construction by the Sandiganbayan of a vague or ambiguous provision can supply the missing ingredients of the Plunder Law. 10.ID.; ID.; ID.; THE CLARITY AND PARTICULARITY REQUIRED OF A COMPLAINT OR INFORMATION SHOULD BE PRESENT IN THE LAW UPON WHICH THE CHARGES ARE BASED. The right of an accused to be informed of the nature and cause of the accusation against him is most often exemplified in the care with which a complaint or information should be drafted. However, the clarity and particularity required of an information should also be present in the law upon which the charges are based. If the penal law is vague, any particularity in the information will come from the prosecutor. The prosecution takes over the role of Congress. DACIHc 11.ID.; ID.; ID.; FACT THAT DETAILS OF CHARGES ARE SPECIFIED IN THE INFORMATION WILL NOT CURE THE STATUTE OF ITS CONSTITUTIONAL INFIRMITY. The fact that the details of the charges are specified in the Information will not cure the statute of its constitutional infirmity. If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. In other words, it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.

12.ID.; ID.; ID.; DEFINITENESS, A DUE PROCESS REQUIREMENT; ESPECIALLY APPLIED TO PENAL STATUTES. Definiteness is a due process requirement. It is especially important in its application to penal statutes. Vagueness and unintelligibility will invariably lead to arbitrary government action. The purpose of the due process clause is to exclude everything that is arbitrary and capricious affecting the rights of the citizen. Congress, in exercising its power to declare what acts constitute a crime, must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. 13.ID.; ID.; ID.; PURPOSES FOR WHICH THE LAW WAS ENACTED, NOT SERVED; CASE AT BAR. The questioned statutes were enacted purportedly in the interest of justice, public peace and order, and the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes allow the prosecutors and the courts arbitrary and too broad discretionary powers in their enforcement. Fair, equal and impartial justice would be denied. SANDOVAL-GUTIERREZ, J., dissenting opinion: 1.POLITICAL LAW; CONSTITUTIONAL LAW; R.A. NO. 7080, AS AMENDED, OR THE PLUNDER LAW, UNCONSTITUTIONAL; LESSENED THE BURDEN OF PROSECUTION BY DISPENSING WITH PROOF OF ESSENTIAL ELEMENTS THEREOF. R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower the degree of proof required in the crime of plunder from proof beyond reasonable doubt to mere preponderance of or substantial evidence, it nevertheless lessened the burden of the prosecution by dispensing with proof of the essential elements of plunder. Let met quote the offending provision: SEC. 4. Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate, or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. In every criminal prosecution, the law recognizes certain elements as material or essential. Calling a particular fact an "essential element" carries certain legal consequences. In this case, the consequence that matters is that the Sandiganbayan cannot convict the accused unless it unanimously finds that the prosecution has proved beyond reasonable doubt each element of the crime of plunder. 2.ID.; ID.; ID.; FACTUAL ELEMENTS OF THE CRIME. Ordinarily, the factual elements that make up a crime are specified in the law that defines it. Under R.A. No. 7080, as amended, the essential elements of the crime of plunder are: a) that the offender is a public officer; b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1(d) . . . and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos (P50,000,000.00). 3.ID.; ID.; ID.; PROVISION THAT PROSECUTION NEED NOT PROVE EACH AND EVERY CRIMINAL ACT DONE BY THE ACCUSED, RENDERED THE ENUMERATED "CRIMINAL ACTS" IN SECTION 1(D) OF THE LAW MERELY AS A MEANS, AND NOT AS ESSENTIAL ELEMENTS THEREOF. When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution to prove each and every criminal act done by the accused, the legislature, in affect, rendered the enumerated "criminal acts" under Section 1(d) merely as means and not as essential elements of plunder. This is constitutionally infirmed and repugnant to the basic idea of justice and fair play. As a matter of due process, the

prosecution is required to prove beyond reasonable doubt every fact necessary to constitute the crime with which the defendant is charged. The State may not specify a lesser burden of proof for an element of a crime. With more reason, it

should not be allowed to go around the principle by characterizing an essential element of plunder merely as a "means" of committing the crime. For the result is the reduction of the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt. 4.ID.; ID.; ID.; ID.; TREATING THE SPECIFIC "CRIMINAL ACTS" MERELY AS MEANS TO COMMIT THE GREATER CRIME OF PLUNDER ALLOWS IMPOSITION OF DEATH PENALTY, EVEN ABSENT A UNANIMITY AMONG THE SANDIGANBAYAN JUSTICES. First, treating the specific "criminal acts" merely as means to commit the greater crime of plunder, in effect, allows the imposition of the death penalty even if the Justices of the Sandiganbayan did not "unanimously" find that the accused are guilty beyond reasonable doubt of those "criminal acts." The three Justices need only agree that the accused committed at least two of the criminal acts, even if not proved by evidence beyond reasonable doubt . They do not have to agree unanimously on which two. 5.ID.; ID.; ID.; SINCE THE LAW PUNISHES PLURALITY OF CRIMINAL ACTS INDICATIVE OF GRAND SCHEME OR CONSPIRACY TO AMASS ILL-GOTTEN WEALTH, FOCUS UPON INDIVIDUAL "CRIMINAL ACTS" NECESSARY TO ASSURE GUILT. Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the grand scheme or

conspiracy to amass ill-gotten wealth, it is imperative to focus upon the individual "criminal acts" in order to assure the guilt of the accused of plunder. 6.ID.; ID.; ID.; LUMPING UP INTO ONE NEW OFFENSE OF PLUNDER SIX DISTINCT CRIMES PUNISHABLE BY SEPARATE STATUTES RENDERS THE INTENT INSIGNIFICANT; EVEN ACTS RECKLESSLY COMMITTED WITHOUT INTENT CAN BE PUNISHED BY DEATH. R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which by themselves are currently punishable under separate statutes or provisions of law. The six (6) separate crimes become mere "means or similar schemes" to commit the single offense of plunder. It bears emphasis that each of the separate offenses is a crime mala in se. The commission of any offense mala in se is inherently accompanied by a guilty mind or a criminal intent. Unfortunately, R.A. No. 7080 converted the six mala in se offenses into one crime which is mala prohibita wherein the intent becomes insignificant. Upon the commission of the proscribed act, without proof of intent, the law is considered violated. Consequently, even acts recklessly committed ( i.e. without intent) can be punished by death. DcSTaC

7.ID.; ID.; ID.; PATTERN OF OVERT OR CRIMINAL ACTS CANNOT BE PROVED BEYOND REASONABLE DOUBT WHEN SPECIFIC "CRIMINAL ACTS" ARE NOT REQUIRED TO BE PROVED. Section 4 mandates that it shall not be necessary for the prosecution to prove each and every criminal act done by the accused . . . it being sufficient to prove beyond reasonable doubt a pattern of overt or criminal acts. By its own terminology, Section 4 requires that the "pattern" be proved by evidence beyond reasonable doubt. Initially, we must disassociate the specific "criminal acts" from the "pattern of criminal acts." These two phrases do not refer to one and the same thing. Pattern, as defined in the dictionary, means an established mode of behavior. In the crime of plunder, the existence of a "pattern" can only be inferred from the specific "criminal acts" done by the accused. Several queries may be raised to determine the existence of a "pattern." Are these criminal acts related or tied to one another? Is the subsequent criminal act a mere continuation of the prior criminal act? Do these criminal acts complement one another as to bring about a single result? Inevitably, one must focus first on each criminal act to ascertain the relationship or connection it bears with the other criminal acts, and from there determine whether a certain "pattern" exists. But how could "pattern" be proved beyond reasonable doubt when in the first place the specific "criminal acts" from which such pattern may be inferred are not even required to be proved ? 8.ID.; ID.; ID.; RULE THAT PROOF BEYOND REASONABLE DOUBT TO ESTABLISH EVERY FACT NECESSARY TO CONSTITUTE THE CRIME IS NOT REQUIRED, AN INFRINGEMENT OF DUE PROCESS. Providing a rule of evidence which does not require proof beyond reasonable doubt to establish every fact necessary to constitute the crime is a clear infringement of due process. While the principles of the law of evidence are the same whether applied on civil or criminal trials, they are more strictly observed in criminal cases. Thus, while the legislature of a state has the power to prescribe

new or alter existing rules of evidence, or to prescribe methods of proof, the same must not violate constitutional requirements or deprive any person of his constitutional rights. Unfortunately, under R.A. No. 7080, the State did not only specify a lesser burden of proof to sustain an element of the crime ; it even dispensed with proof by not considering the specific "criminal acts" as essential elements.
9.ID.; ID.; ID.; ID.; JUSTIFICATION FOR THE RULE ABSENT; EXISTENCE OF THE REQUISITE "COMBINATION OR SERIES" BY PROOF BEYOND REASONABLE DOUBT CANNOT BE ESTABLISHED. In dispensing with proof of each criminal act, the clear objective of Congress is to render it less difficult for the prosecution to prove the crime of plunder. While this presupposes a noble intention, I do not think there is a sufficient justification. I, too, have the strong desire to eliminate the sickness of corruption pervading in the Philippine government, but more than anything else, I believe there are certain principles which must be maintained if we want to preserve fairness in our criminal justice system. If the prosecution is not mandated to prove the specific "criminal acts" then how can it establish the existence of the requisite "combination or series" by proof beyond reasonable doubt? 10.ID.; ID.; ID.; UNCONSTITUTIONAL DUE TO VAGUENESS OF THE TERM "PATTERN." Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term "pattern." As stated by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt or criminal acts" embodied in the law was derived by Congress from the RICO (Racketeer Influenced and Corrupt Organizations) statute. I am, therefore, constrained to refer to US law and jurisprudence. "Pattern" as defined in the RICO statute means "as requiring at least two acts of racketeering activity . . . the last of which occurred within ten years . . . after the commission of the prior act of racketeering activity. Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the number of criminal acts necessary before there could be a "pattern," as well as b) the period within which the succeeding criminal acts should be committed. These failures render the law void for its vagueness and broadness. Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are necessary to give rise to a "pattern of overt or criminal acts" in the crime of

plunder. If there is no numerical standard, then, how should the existence of "pattern" be ascertained? Should it be by proximity of time or of relationship? May an act committed two decades after the prior criminal act be linked with the latter for the purpose of establishing a pattern? 11.ID.; ID.; ID.; ABSENCE OF PERIOD WITHIN WHICH NEXT CRIMINAL ACT MUST BE COMMITTED TO ESTABLISH PATTERN SUBJECTS PERSON TO CRIMINAL PROSECUTION AD INFINITUM. It must be remembered that plunder, being a continuous offense, the "pattern of overt or criminal acts" can extend indefinitely, i.e., as long as the succeeding criminal acts may be linked to the initial criminal act. This will expose the person concerned to criminal prosecution ad infinitum. Surely, it will undermine the purpose of the statute of limitations, i.e., to discourage prosecution based on facts obscured by the passage of time, and to encourage law enforcement officials to investigate suspected criminal activity promptly. All these undesirable consequences arise from the fact that the plunder law fails to provide a period within which the next criminal act must be committed for the purpose of establishing a pattern . I believe R.A. No. 7080 should have provided a cut-off period after which a succeeding act may no longer be attached to the prior act for the purpose of establishing a pattern. In reiteration, the RICO law defines "pattern" as requiring at least two acts of racketeering activity . . . the last of which occurred within ten years . . . after the commission of the prior act of racketeering activity. Such limitation prevents a subsequent racketeering activity, separated by more than a decade from the prior act of racketeering, from being appended to the latter for the purpose of coming up with a pattern. We do not have the same safeguard under our law. 12.ID.; ID.; ID.; VAGUENESS OF THE TERMS "COMBINATION" AND "SERIES"; LAW SHOULD ESTABLISH THE ELEMENTS OF THE CRIME AND PROVIDE REASONABLY ASCERTAINABLE STANDARDS OF GUILT; REQUIREMENTS OF THE CONSTITUTION ON CLARITY AND DEFINITENESS, NOT SATISFIED. Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis of the law, a conviction of an accused cannot be sustained. A statute that does not provide adequate standards for adjudication, by which guilt or innocence may be determined, should be struck down. Crimes must be defined in a statute with appropriate certainty and definiteness. The standards of certainty in a statute prescribing punishment for offenses are higher than in those depending primarily on civil sanctions for their enforcement. A penal statute should therefore be clear and unambiguous. It should explicitly establish the elements of the crime which it creates and provide some reasonably ascertainable standards of guilt. It should not admit of such a double meaning that a citizen may act on one conception of its requirements and the courts on another. I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of the terms 'combination' and 'series' as well as recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the requirement of the Constitution on clarity and definiteness." The deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on what constitute "combination" and "series". 13.ID.; ID.; ID.; ID.; ESSENCE OF THE LAW LIES IN THE PHRASE "COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS." The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." As can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of plunder if there is only a single criminal act. DEcSaI 14.ID.; ID.; ID.; ID.; ID.; THE TERMS "COMBINATION" AND "SERIES" SHOULD BE DEFINED WITH EXACTITUDE TO SATISFY THE DEMANDS OF DUE PROCESS. Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due process of law demands that the terms "combination" and "series" be defined with exactitude in the law itself. Equating these terms with mere "plurality" or "two or more," is inaccurate and speculative. For one, a "series" is a group of usually three or more things or events standing or succeeding in order and having like relationship to each other. The Special Prosecution Division Panel defines it as "at least three of the acts enumerated under Section 1(d) thereof." But it can very well be interpreted as only one act repeated at least three times. And the Office of the Solicitor General, invoking the deliberations of the House of Representatives, contends differently. It defines the term series as a "repetition" or pertaining to "two or more." The disparity in the Prosecution and OSG's positions clearly shows how imprecise the term "series" is. This should not be countenanced. Crimes are not to be created by inference. No one may be required, at the peril of life, liberty or property to guess at, or speculate as to, the meaning of a penal statute. An accused, regardless of who he is, is entitled to be tried only under a clear and valid law. 15.ID.; ID.; ID.; VAGUENESS OF THE LAW NOT CURED BY SPECIFICATION IN THE INFORMATION OF DETAILS OF THE OFFENSE TO BE CHARGED; THE STATUTE, NOT THE ACCUSATION, PRESCRIBES THE RULE TO GOVERN CONDUCT AND WARNS AGAINST AGGRESSION. Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the Information clearly specified the acts constituting the crime of plunder. I do not agree. It is the statute and not the accusation under it that prescribes the rule to govern conduct and warns against aggression. If on its face, a statute is

repugnant to the due process clause on account of vagueness, specification in the Information of the details of the offense intended to be charged will not serve to validate it.

16.ID.; ID.; ID.; ID.; ID.; VAGUENESS CANNOT BE CURED BY JUDICIAL CONSTRUCTION. Precision must be the characteristic of penal legislation. For the Court to define what is a crime is to go beyond the so-called positive role in the protection of civil liberties or promotion of public interests. As stated by Justice Frankfurter, the Court should be wary of judicial attempts to impose justice on the community; to deprive it of the wisdom that comes from self-inflicted wounds and the strengths that grow with the burden of responsibility. A statute which is so vague as to permit the infliction of capital punishment on acts already punished with lesser penalties by clearly formulated law is unconstitutional. The vagueness cannot be cured by judicial construction. 17.ID.; ID.; ID.; UNCONSTITUTIONAL, AS IT VIOLATES THE DUE PROCESS CLAUSE OF THE CONSTITUTION. To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS CLAUSE of the Constitution. The vagueness of its terms and its incorporation of a rule of evidence that reduces the burden of the prosecution in proving the crime of plunder tramples upon the basic constitutional rights of the accused.

DECISION

BELLOSILLO, J p: JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others .
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary sociopolitical ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder), 1 as amended by RA 7659, 2 wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: SECTION 1.. . . . (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material

possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes :

(1)Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2)By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3)By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4)By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5)By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6)By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines .
SECTION 2.Definition of the Crime of Plunder, Penalties. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished byreclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). SECTION 4.Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 ( Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 ofThe Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use of An Alias (CA No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a", "b", and "c" to give the accused the opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. 3 Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain." 5 And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus

1.That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2.That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3.That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, illgotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a)by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward

Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b)by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000.000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (emphasis supplied). (c)by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00) RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'

(d)by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous as there is obviously none that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. aCSEcA Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; 6 much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, 7 unless it is evident that the legislature intended a technical or special legal meaning to those words. 8 The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series":

Combination the result or product of combining; the act or process of combining. To combine is to
bring into such close relationship as to obscure individual characters.

Series a number of things or events of the same class coming one after another in spatial and
temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO:

Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice but combination, two acts. REP. ISIDRO: So in other words, that's it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: That's not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So . . . REP. GARCIA: Series. One after the other eh di . . . SEN. TAADA: So that would fall under the term "series?" REP. GARCIA: Series, oo. REP. ISIDRO:

Now, if it is a combination, ano, two misappropriations . . . REP. GARCIA: Its not . . . Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TAADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha . . . REP. ISIDRO: Now a series, meaning, repetition . . . DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series." Anyway, the criminal acts are in the plural. SENATOR TAADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be . . . .

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more. SENATOR TAADA: Accepted, Mr. President . . . . THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say "acts of plunder" there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a "series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 . . . . under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him, follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 10 But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. 11 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. 12 It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. ESCacI Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." 13 The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'' 14 A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." 15 The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." 16 In Broadrick v. Oklahoma, 17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'' 19 In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." 20 As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.'' 21 Consequently,

there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. 22 It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. 23 But, as the U.S. Supreme Court pointed out in Younger v. Harris 24 [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," 25 and is generally disfavored. 26 In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged. 27 In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan 28 must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitionersGallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: . . . or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, . . . (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4.Rule of Evidence. For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. 29 The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. 30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA:

Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt .

What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber

in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was

charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two .
Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO:

I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of
extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (emphasis supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00. 31 A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth. The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. DaHISE Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder"; and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN:

In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law . . . . JUSTICE BELLOSILLO: What I said i do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution. 32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4.Rule of Evidence For purposes of establishing the crime of plunder . . . . It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons

advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7.Separability of Provisions. If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion . . . Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder. 33 However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . . 34 Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. IaECcH Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." 35 Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable byreclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray: 36 The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the

government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of

crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society .

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se.For when the acts punished are inherently immoral or inherently wrong, they are mala in se 37 and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray 38 to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentless]y contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED.

Buena and De Leon, Jr., JJ., concur. Mendoza, J., files separate concurring opinion. Davide, Jr., C.J., Melo, Puno, Vitug and Quisumbing, JJ., concur with the opinion of Justice Mendoza. Panganiban, J., files separate concurring opinion. Kapunan, Pardo, Ynares-Santiago and Sandoval-Gutierrez, JJ., file separate dissenting opinions. Carpio, J., took no part as he was one of complainants before Ombudsman.

EN BANC [G.R. No. 162777. August 31, 2004.] FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial Region, Commission on Elections, and the SOLICITOR GENERAL, respondents.

DECISION

AZCUNA, J p:

In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows: Section 32.All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code. Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96 North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International Plastics Manufacturing Corporation and another corporation involved in the amusement and video games business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the Balintawak Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the clothes of 96 North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box. On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon Demokratiko. On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision by the COMELEC's Law Department. He replied, on January 29, 2004, by requesting the COMELEC that he be informed as to how he may have violated the assailed provision. He sent another letter dated February 23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules. IEHTaA The COMELEC answered petitioner's request by issuing another letter, dated February 27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request. Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post factolaw; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth. Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power? Petitioner argues that the billboards, while they exhibit his name and image, do not at all announce his candidacy for any public office nor solicit support for such candidacy from the electorate. They are, he claims, mere product endorsements and not election propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of the COMELEC, he concludes. This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general welfare of the people. 1 To determine the validity of a police measure, two questions must be asked: (1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and (2) Are the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals? A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC, 2 wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air

time "for campaigning or other political purposes," except to the COMELEC. The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so many of our population falling below the poverty line. Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, "election campaign" or "partisan political activity" is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are: (1)Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2)Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3)Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4)Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5)Directly or indirectly soliciting votes, pledges or support for or against a candidate . 3 (emphasis ours) It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning: HCSEcI Sec. 80.Election campaign or partisan political activity outside campaign period . It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period . . . 4 Article IX(C)(4) of the Constitution provides: Sec. 4.The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to supervise or regulate the enjoyment or utilization of all media communication or information to ensure equal opportunity, time, and space. All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections.

Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause. The non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. 5 Equal opportunity to proffer oneself for public office, without regard to the level of financial resources one may have at his disposal, is indeed of vital interest to the public. The State has the duty to enact and implement rules to safeguard this interest. Time and again, this Court has said that contracts affecting public interest contain an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power. 6 Furthermore, this Court notes that the very contracts entered into by petitioner provide that the endorser's photograph and image shall be utilized in whatever form, mode and manner " in keeping with norms of decency, reasonableness, morals and law;" 7 and in whatever form, mode and manner not contrary to law and norms of decency," 8 and "in whatever form, mode and manner in keeping with norms of decency, reasonableness, morals and law." 9 Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes an individual criminally liable for an election offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a person, whose name or image is featured in any such advertisement, liable for premature campaigning under the Omnibus Election Code. 10 A close scrutiny of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of "propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office." Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case. Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to him, under this law, billboards are already permitted as lawful election propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of election propaganda through the assailed provision, violated the Fair Elections Act. Petitioner's argument is not tenable. The Solicitor General rightly points out that the assailed provision does not prohibit billboards as lawful election propaganda. It only regulates their use to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity. 11 Moreover, by regulating the use of such election propaganda materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and regulation by the COMELEC: SECTION 3. Lawful Election Propaganda. Election propaganda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). For the purpose of this Act, lawful election propaganda shall include:

3.1.Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length; 3.2.Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; 3.3.Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; DaIACS 3.4.Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and 3.5.All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. xxx xxx xxx SECTION 13.Authority of the COMELEC to Promulgate Rules; Election Offenses. The COMELEC shall promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881). Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media. Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881). Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because of overbreadth. A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulations may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. 12 The provision in question is limited in its operation both as to time and scope. It only disallows the continued display of a person's propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period. Said materials and advertisements must also show his name and image. There is no blanket prohibition of the use of propaganda materials and advertisements. During the campaign period, these may be used subject only to reasonable limitations necessary and incidental to achieving the purpose of preventing premature campaigning and promoting equality of opportunities among all candidates. The provision, therefore, is not invalid on the ground of overbreadth. WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs. SO ORDERED.

Davide, Jr., C .J ., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Tinga andChicoNazario, JJ ., concur. Puno, Panganiban, Sandoval-Gutierrez and Carpio, JJ ., are on official leave.

EN BANC [G.R. No. 63915. April 24, 1985.] LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

Lorenzo M. Taada, Abraham F. Sarmiento, Mabini Legal Aid Committee for petitioners Solicitor General for respondents.
SYLLABUS 1.CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; LEGAL PERSONALITY OF PETITIONERS TO FILE MANDAMUS TO COMPEL PUBLICATION, RECOGNIZED. The subject of the petition is to compel the performance of a public duty and petitioners maintain they need not show any specific interest for their petition to be given due course. The right sought to be enforced by petitioners is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. 2.ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE PUBLICATION IN THE OFFICIAL GAZETTE EVEN IF THE LAW ITSELF PROVIDES FOR DATE OF ITS EFFECTIVITY. That publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates is correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. 3.ID.; ID.; ID.; RATIONALE. The clear object of Article 2 of the Civil Code is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. 4.ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES "OF A PUBLIC NATURE" OR "OF GENERAL APPLICABILITY," A REQUIREMENT OF DUE PROCESS; UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT FORCE AND EFFECT. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. (People vs. Que Po Lay, 94 Phil. 640; Balbuena, et al. vs. Secretary of Education, et al., 110 Phil. 150) It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first

be officially and specifically informed of its contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. 5.ID.; ID.; ID.; DECLARATION OF INVALIDITY OF UNPUBLISHED PRESIDENTIAL DECREES DOES NOT AFFECT THOSE WHICH HAVE BEEN ENFORCED OR IMPLEMENTED PRIOR TO THEIR PUBLICATION. The implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration . . .that an all inclusive statement of a principle of absolute retroactive invalidity cannot be justified." FERNANDO, C.J., concurring with qualification: 1.CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT BE CONFINED TO THE OFFICIAL GAZETTE. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. But such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is to be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree, or any other executive act of the same category being bereft of any binding force and effect. To so hold would raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution. 2.ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL CODE DOES NOT HAVE THE JUDICIAL FORCE OF A CONSTITUTIONAL COMMAND. The Chief Justice's qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. He is not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule. 3.ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT LEGAL FORCE AND EFFECT WOULD RESULT IN UNDESIRABLE CONSEQUENCES. Nor does the Chief Justice agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in his opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. He finds himself therefore unable to yield assent to such a pronouncement. TEEHANKEE, J., concurring: 1.CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE; NECESSARY PURSUANT TO THE BASIC CONSTITUTIONAL REQUIREMENTS OF DUE PROCESS. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstanced and not subject to arbitrary change but only under certain set procedure. The Court had consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation," (People vs. de Dios, G.R. No. L-11003, August 31, 1959, per the late Chief Justice Paras) citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents. especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties." Without official publication in the Official Gazette as required by Article 2 of the Civil Code and Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith." 2.ID.; ID.; ID.; RESPONDENTS' CONTENTION THAT "ONLY LAWS WHICH ARE SILENT AS TO THEIR EFFECTIVITY DATE NEED TO BE PUBLISHED IN THE OFFICIAL GAZETTE FOR THEIR EFFECTIVITY," UNTENABLE. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided," i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that had been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect (only) one year (not 15 days) after such publication." To sustain respondents misreading that "most laws or decrees

specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity" would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination. MELENCIO-HERRERA, J., concurring: CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; RETROACTIVITY IN EFFECTIVITY DATE NOT ALLOWED WHERE IT WILL RUN COUNTER TO CONSTITUTIONAL RIGHTS OR DESTROY VESTED RIGHTS. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. When a date effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., separate opinion: 1.CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE NOT ESSENTIAL FOR EFFECTIVITY FOR EFFECTIVITY OF LAWS. The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date. 2.ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN IN THE OFFICIAL GAZETTE. Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided." Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette. 3.ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR RESTRICT OPERATION OF A STATUTE WITH A PROVISION AS TO ITS EFFECTIVITY. Not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, Commonwealth Act No. 638 does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume the role.

DECISION

ESCOLIN, J p: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought:

a]Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b]Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964, 997, 1149-1178, 1180-1278. c]General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d]Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 16941695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 18351836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 20462145, 2147-2161, 2163-2244. e]Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471, 474-492, 494-507, 509-510, 522, 524528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857. f]Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g]Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: Cdpr "SEC. 3.Petition for Mandamus. When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant." Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real

party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]." Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: Cdpr "We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error.' "No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character." The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

"Art. 2.Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, . . ." The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: "Section 1.There shall be published in the Official Gazette [1] all important legislative acts and resolutions of a public nature of the Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. . . ."

The clear object of the above quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. cdphil Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa and for the diligent ones, ready access to the legislative records no such publicity accompanies the lawmaking process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion genrica de leyes, se comprenden tambin los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad." 5 The very first clause of Section 1 of Commonwealth Act 638 reads: "There shall be published in the Official Gazette . . ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden on the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7 : "In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents." The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: LLjur "The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration . . . that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby." The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately." WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. Relova, J., concur. Aquino, J., took no part. Concepcion, Jr., J., is on leave. Gutierrez, Jr., J., I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication

being in the Official Gazette.

De la Fuente, J., Insofar as the opinion declares the unpublished decrees and issuances of a public nature or general

applicability ineffective, until due publication thereof.

FIRST DIVISION [G.R. No. L-11390. March 26, 1918.] EL BLANCO ESPAOL-FILINO, plaintiff-appellee, vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant.

Aitken & DeSelms for appellant. Hartigan & Welch for appellee.
SYLLABUS

1.MORTGAGES; FORECLOSURE; JURISDICTION OF COURT OVER NONRESIDENT MORTGAGOR. Where the defendant in a mortgage foreclosure lives out of the Islands and refuses to appear otherwise submit himself to the authority of the court, the jurisdiction of the latter is limited to the mortgaged property, with respect to which the jurisdiction of the court is based upon the fact that the property is located within the district and that the court, under the provisions of law applicable in such cases, is vested with the power to subject the property to the obligation created by the mortgage. In such case personal jurisdiction over the nonresident defendant is nonessential and in fact cannot be acquired. 2.ID.; ID.; ID.; FAILURE OF CLERK TO SEND NOTICE BY MAIL. The failure of the clerk to send notice by mail to the nonresident defendant in a foreclosure proceeding, as required by an order of the court, does not defeat the jurisdiction of the court over the mortgaged property. 3.ID.; ID.; ID.; PERSONAL LIABILITY. In an action to foreclose a mortgage against a nonresident defendant who fails to submit himself to the jurisdiction of the court, no adjudication can be made which involves a determination of a personal liability of either party arising out of the contract of mortgage. 4.ID.; ID.; ID.; ASCERTAINMENT OF AMOUNT DUE.- In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. The mere fact that the court thus ascertains the amount of the debt and orders of the defendant to pay it into court does not constitute the entering of a judgment against him as upon a personal liability. 5.CONSTITUTIONAL LAW; DUE PROCESS. As applied to judicial proceedings, due process of law implies that there must be a court of tribunal clothed with the power to hear and determine the matter before it, that jurisdiction shall have been lawfully acquired, that the defendant shall have an opportunity to be heard, and that judgment shall be rendered upon lawful hearing. 6.ID.; ID.; MORTGAGE; FORECLOSURE. In an action to foreclose a mortgage against a nonresident, some notification of the proceedings must be given to the defendant. Under statutes generally prevailing, this notification commonly takes the form of publication in a newspaper of general circulation and the sending of notice, by mail, by which means of the owner is admonished that his property is the subject of judicial proceedings. The provisions law providing for notice of this character must be complied with. 7.ID.; ID.; ID.; ORDER FOR MAILING OF NOTICE BY CLERK. In a foreclosure proceeding against a nonresident defendant, the court is required to make an order for the clerk to mail a copy of the summons and complaint to the defendant at this last place of residence if known. In the present case an order was made directing the clerk to mail the required copy to the defendant at Amoy China. No evidence appeared of record showing that such notice had in fact been mailed by the clerk; but publication was regularly made in a periodical as the law requires. Held: That the making of the order by the court constituted a compliance with the law, in so far as necessary to constitute due process of law, and that if the clerk failed to send the notice, his dereliction in the performance of his duty was in irregularity which did not constitute an infringement of the provision of the Philippine Bill declaring that no person shall have deprived of property without due process of law. 8.JUDGMENT; MOTION TO VACATE; IRREGULARITY IN GIVING OF NOTICE. A defendant who seeks to vacate a judgment in a foreclosure proceeding on the ground of irregularity in the sending of notice by post, or failure to send such notice pursuant to an order of the court, must show that as result of which irregularity he suffered some prejudice of which the law can take account. 9.ID.; ID.; PREJUDICE TO DEFENDANT. In a mortgage foreclosure proceeding the property was bought in at the public sale by the plaintiff, the mortgagee, at a price much below the upset value agreed upon in the mortgage. Held: That if any liability was incurred by the plaintiff by purchasing at a price below which had been agreed upon as the upset price, such liability was of a personal nature and could not be the subject of adjudication in a foreclosure against a nonresident defendant who did not come in and submit to the jurisdiction of the court. Such act of the plaintiff was, therefore, not such a prejudice to the defendant as would justify the opening of the judgment of foreclosure. 10.ID.; ID.; DELAY AS AFFECTING RIGHT TO RELIEF. A party who seeks to open a final judgment with a view to a renewal of the litigation should how that he has acted with diligence; and unexplained delay in seeking relief is a circumstance to be considered as affecting the application adversely. 11.ID.; ID.; ID.; PRESUMPTION OF KNOWLEDGE. Upon an application made by the representative of a deceased nonresident to vacate a judgment in a foreclosure proceeding, it is held that, under the circumstances of the particular case, knowledge of the proceedings, or of their result, should be imputed to him, upon the legal presumption that things have happened according to the ordinary habits of life, and that as a consequence his failure

to apply for relief within the year and a half during which he survived the foreclosure proceedings was a circumstance adversely affecting the application for relief. 12.ID.; UNSETTLEMENT OF JUDICIAL PROCEEDINGS; PUBLIC POLICY. An application which proposes to disturb judicial proceedings long closed cannot be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is Non quieta movere. 13.PRESUMPTIONS; PERFORMANCE OF OFFICIAL DUTY. Where the court makes an order for the clerk to mail notice of a foreclosure proceeding to a nonresident defendant it will be presumed in the absence of affirmative proof to the contrary that the duty was performed. 14.ID.; ACTS OF COURT OF GENERAL JURISDICTION. After jurisdiction has once been acquired, every act of a court of general jurisdiction is presumed to have been rightly done. This rule is applied to every judgment rendered in the various stages of the proceedings; and if the record is silent with respect to any fact which should have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. 15.ID.; JURISDICTIONAL FACT. Where the officer makes a return concerning the manner in which service was effected, and this service appears to have been insufficient, it cannot be presumed that other legal service was effected by the same officer or other authorized person. This rule, however, is not applicable to the case where an affidavit relative to mailing notice to a nonresident, instead of being made by the proper officer, is made by one acting without legal authority. 16.JUDGMENTS; MOTION TO VACATE; TIME WITHIN WHICH MOTION MAY BE MAINTAINED. Where a judgment is not void on its face, a motion to vacate the judgment with a view to a continuation of the litigation, can be maintained in a Court of First Instance only in accordance with section 113 of the Code of Civil Procedure, which sets time limit of six months from the date when the judgment is entered. After the expiration of this period the party who seeks relief against a judgment alleged to void for some defect not apparent on its face must have recourse to an appropriate original proceeding.

DECISION

STREET, J p: This action was instituted upon March 31, 1908, by "El Banco Espaol-Filipino" to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing to him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China, which appears to have been his native country; and he there died, upon January 29,1910, without again returning to the Philippine Islands. As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court was entered directing that publication should be made in a newspaper, the court further directed that the clerk of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: "In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forwith deposited by the clerk in the post-office, postage prepaid, directed to the person to be served, at his place of residence." Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of

the attorneys for the bank, showing that upon that date he had deposited in Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably used an enveloped obtained from the clerk's office, as the receipt purports to show that the letter emanated from said office. The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about notice having been given by mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355.32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was brought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court. About seven years after the confirmation of this sale, or to be precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis for this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action. At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Palanca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as is related to the action of the court upon said motion. The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of the argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law. The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, (2) over the property which is the subject to the litigation. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person. Jurisdiction over the property which is subject of litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by the actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression, "action in rem' is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or

obligation upon which the proceedings are based. The action quasi in rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. In speaking of the proceeding to foreclose a mortgage the author of a well-known treatise, has said: "Though nominally against persons, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification above-mentioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in common law, they would be different if chancery did not treat the conditional conveyance as a mere hypothecation, and the creditor's right as an equitable lien; so, in both, the suit is a real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of res." (Waples, Proceedings In Rem. Sec. 607.) It is true that in proceedings of this character, if the defendant for whom duplication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem. There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: "If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem,the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff." (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceedings, if the defendant is not personally served, the preliminary seizure is to be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If an lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U.S., 398, 405; 44 L. ed., 520.) It results that mere circumstance that an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the time comes for the sale, does not materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem. Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person on the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is non-resident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such an action, is evidently based upon the following conditions and considerations, namely : (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into its custody, if necessary, and exposes it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforce enforced against the property.

We may then, from that has been stated, formulate the following propositions relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (1) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself. It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that the jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U.S., 714; 24 L. ed. 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that the jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L.R.A. [N.S.], 292; see also 50 L.R.A., 585; 35 L.R.A., [N.S.] 312.) The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize to court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that the proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U.S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U.S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment. In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words: "Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount P249,355.32, plus the interest, to the 'Banco Espaol-Filipino' . . . before said defendant is ordered to deliver the above amount etc., etc." This is not the language of a personal judgment. Instead it is clearly intended merely as compliance with the requirement that the amount due shall be ascertained and that the defendant shall be required to pay it. As further evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt (sec. 260) The conclusion upon this phase is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rests upon a basis much more secure than would be supplied by any form of notice that could be given to a resident of a foreign country. Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was

obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas. We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt at precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court of tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must rendered upon lawful hearing. Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service, such notification does not constitute a service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished by his property is the subject of judicial proceedings and that it is uncumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguished master of constitutional law has used the following language: " . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness of their interests, and in order to make sure that the opportunity for a hearing shall be lost to them, than from any necessity that the case shall assume that form." (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U.S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is evident that the actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. "It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences." (6 R.C.L., sec. 445 [p.450]). It has been well said by an American court: "If properly of a nonresident cannot be reached by legal process upon constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one." (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course, universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the

newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U.S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient. With respect to the provisions of our statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to be some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that in placing upon the clerk the study of sending notice by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 339 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on. The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such as irregularity as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This is our opinion is all that was absolutely necessary to sustain the proceedings. It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that the failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judged in the light of these conceptions, we think that the provision of the Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions of irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effects considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion. An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R.C.L., 718.) The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from an encyclopedic treatise now in course of publication: "Where, however, the judgment is not void on its face, and may therefore be forced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgment after the lapse of the term at which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might

otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has burden of showing diligence, and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor." (15 R.C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died on January 29, 1910. The mortgage under which the property was sold was executed far back in 1906; and in the proceedings in the foreclosure were closed by the order of the court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property. The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordean (234 U.S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him. Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by this circumstances of this case, we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Not is it an adequate reply to say that the proponent of this motion is a administrator who only qualified a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and the institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course in the minor heirs had instituted an action in their own right to recover to property, it would have been different. It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should served as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation. It has been held by this court that a clause in a mortgage providing for a tipo, or upset the price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11, Phil. Rep., 402, Banco-Espaol Filipino vs. Donaldson, Sim & Co., 5 Phil. Rep. 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but a third party. Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by the purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already

demonstrated such a liability count not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price at which it bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance. In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon the grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States: "Public policy requires that judicial proceedings be upheld, and titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realized the value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect." (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclose proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the absent partly was a resident of a certain town in the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings. In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We know proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause. In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary course of business has been followed." These presumption are of course in no sense novelties as they express ideas which have always been recognized. Omnia praesumuntur rite et solemniter esse acta donec probdetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has no right to meddle unduly with the business of clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed in the clerk are performed. Other considerations are less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiations to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U.S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.) "In making the order of sale [of the real state of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided." (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all his apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U.S., 225) contains as instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also that the order requiring the defendant to appear should be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after a publication in pursuance of this provisions. Many years later the validity of the proceedings was called in question in another action. It was

proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the court-house. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: "The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral, or indirect attack, while in the case at bar the motion to vacate the judgment is a direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack, the only difference being that in case of indirect attack the judgment is conclusively presumed to be a valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record. The presumption that the clerk performed his duty and that the court made its decree with knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like the now before us would depend, for its continued security, upon the presence of such affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. It our opinion the proper course in a case of this kind is to hold h that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact. In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in case and which are finally deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, a matter of common knowledge, been generally ignored. The result is that in the present case do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file. But it is insisted by the counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending that the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he would have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to right address. There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise that as stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place of in a particular manner, it will not be presumed that service also made in another place or in a different manner; or if it appears that service was made a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U.S., 444,449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is

by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler. The last question of importance which we propose to consider is whether the motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume it regular course. There is only one section of the Code of Civil Procedure which expressly recognized the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: "SEC. 113.Upon such term as may be just the court may relieve a party on his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That the application therefor be made within the reasonable time, but in no case exceeding six months after such judgment order, or proceeding was taken." An additional remedy by petition to the Supreme Court is supplied by section 513 on the same Code. The first paragraph of this section, is in so far as pertinent to this discussion, provides as follows: "When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . . " It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe that the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation. The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded. The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the court of First Instance in dismissing the motion was proper. If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the motion came too late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for warrant of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to by nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate proceedings to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly hold that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an

original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be obtained by motion; and we think it would only be productive of confusion for this court to recognize such a proceeding as proper under conditions different from those defined by law. Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted that section 113 of the Code of Civil Procedure was taken verbatim from the California Code (sec. 473). The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered.

Arellano, C.J. Torres, Carson, and Avancea, JJ., concur.


Separate Opinions MALCOLM, J., dissenting: I dissent. It will not make me long to state my reason. An immutable attribute the fundamental idea of due process of law is that no man shall be condemned in his person or property without notice and an opportunity of being heard in his defense. Protection of the parties demands a strict and an exact compliance this constitutional provision in our organic law and of the statutory provisions in amplification. Literally hundreds or precedents could be cited in support of these axiomatic principles. Where as in the instant case the defendant received no notice and had no opportunity to be heard, certainly we cannot say that there is due process of law. Resultantly, "A judgment which is void upon its face, and which requires only in inspection of the judgment roll to demonstrate it want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant." (Mills vs. Dickson, 6 Rich. [S.C.], 487.)

EN BANC [G.R. No. 126995. October 6, 1998.] IMELDA R. MARCOS, petitioner, vs. the Honorable SANDIGANBAYAN (First Division). and THE PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1.CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; R.A. 3019 SECTION 3(g); ELEMENTS THEREOF. Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr. with a violation of Section 3(g) of R.A. 3019, the following elements of the offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the government. cdasia 2.ID.; ID.; ID.; ID.; FIRST ELEMENT THEREOF, WANTING IN CASE AT BAR; PETITIONER DID NOT SIGN SUBJECT LEASE AGREEMENT AS PUBLIC OFFICER. The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit "B" as a public officer? As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as ex-officio Vice Chairman of LRTA. Although petitioner was the ex-officio Chairman of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the lease Agreement sued upon. In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting.

3.ID.; ID.; ID.; ID.; INSUFFICIENT EVIDENCE TO PROVE THAT SUBJECT LEASE AGREEMENT WAS GROSSLY AND MANIFESTLY DISADVANTAGEOUS TO THE GOVERNMENT. As regards the second element of the offense that such Lease Agreement is grossly and manifestly disadvantageous to the government, the respondent court based its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease Agreement is P734,000.00. After comparing the two rental rates aforementioned, the respondent court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the government. But Exhibit "B" does not prove that the said contract entered; into by petitioner is "manifestly and grossly disadvantageous to the government." There is no established standard by which Exhibit "B"'s rental provisions could be adjudged prejudicial to LRTA or the entire government. Exhibit "B" standing alone does not prove any offense. Neither does Exhibit "B" together with the Sub-lease Agreement (Exhibit "D") prove the offense charged. At most, it creates only a doubt in the mind of the objective readers as to which (between the lease and sub-lease rental rates) is the fair and reasonable one, considering the different circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA nor the Government suffered any injury. There is, therefore, insufficient evidence to prove petitioner's guilt beyond reasonable doubt. 4.ID.; ID.; ID.; ID.; DISPARITY BETWEEN THE RENTAL PRICE OF THE LEASE AGREEMENT AND THAT OF THE SUBLEASE AGREEMENT, NOT PROOF THAT SUBJECT LEASE AGREEMENT IS MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT. That the Sub-lease Agreement (Exhibit "D") was for a very much higher rental rate of P734,000.00 a month is of no moment. This circumstance did not necessarily render the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous to the government. Not even a single lease contract covering a property within the vicinity of the said leased premises was offered in evidence. The disparity between the rental price of the Lease Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the prosecution, "that the Lease Agreement in question is manifestly and grossly disadvantageous to the government". "Gross" is a comparative term. Before it can be considered "gross", there must be a standard by which the same is weighed and measured. All things viewed in proper perspective, it is decisively clear that there is a glaring absence of substantiation that the Lease Agreement under controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution. 5.ID.; ID.; ID.; ID.; ABSENCE OF PROOF THAT PETITIONER WAS PRESENT WHEN SUBJECT AGREEMENT WAS APPROVED IN CASE AT BAR. Another sustainable ground for the granting of petitioner's motion for reconsideration is the failure and liability of the prosecution to prove that petitioner was present when the Board of Directors of LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex-officio chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there is no evidence whatsoever to show that she attended the board meeting of LRTA which deliberated and acted upon subject Lease Agreement (Exhibit "B"). It is thus beyond cavil that petitioner signed the said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and not as a public officer. 6.REMEDIAL LAW; EVIDENCE; CONSPIRACY; ABSENCE THEREOF IN CASE AT BAR. Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot be viewed as an act of the former. Petitioner is only answerable for her own individual act. Consequently, petitioner not having signed Exhibit "B" as a public officer, there is neither legal nor factual basis for her conviction under Section 3 (g) of Rep. Act 3019. 7.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; PROCEDURAL FLAWS COMMITTED BY SANDIGANBAYAN CONSIDERED FATAL TO THE VALIDITY OF ITS DECISION CONVICTING PETITIONER; REASONS. Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its "decision" convicting petitioner for the following reasons, viz.: First, Section 4, Rule VI categorically provides that "sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila where it shall try and determine all cases filed with it . . . ." This rule reiterates Sec. 2 of P.D. No. 1606, as amended, creating the Sandiganbayan. Second. The rules of Sandiganbayan do not allow unscheduled discussion of cases. We take judicial notice of the procedure that cases in all courts are carefully calendared and advance notices are given to judges and justices to enable them to study and prepare for deliberation. The calendaring of cases cannot be the subject of anybody's whims and caprices. Third. The rules of Sandiganbayan do not also allow informal discussion of cases. The deliberations in case at bar did not appear on record. The informal discussion of the three justices came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled "Response," revealed for the first time the informal discussion of petitioner's cases at an unnamed restaurant in Quezon City. There is no way to know how the discussion was conducted as it was not minuted. Fourth. The rules of the Sandiganbayan do not allow the presence of a non-member in the deliberation of cases. In the case at bar, a certain

justice was present when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioner's cases while taking their lunch in a Quezon City restaurant.Fifth. the rules of the Sandiganbayan do not allow the exclusion of a member of a Division, whether regular or special, in the deliberation of cases. Justices Atienza and Amores were members of the Special Division but were not present when petitioner's cases were discussed over lunch in a Quezon City restaurant. They were not notified of the informal, unscheduled meeting. In fact, Justice Amores had a pending request for 15 days to study petitioner's cases. In effect, Atienza and Amores were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner. DHTCaI 8.ID.; ID.; ID.; PETITIONER DENIED THE RIGHT TO BE TRIED BY COLLEGIAL COURT IN CASE AT BAR. These irregularities violated the right of petitioner to be tried by a collegial court. Under P.D. No. 1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted except upon the vote of three justices, regardless of whether her cases are before a regular division of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three (3) justices is the process by which they arrive at their vote. It isindispensable that their vote be preceded by discussion and deliberation by all the members of the division. Before the deliberation by all, any opinion of a justice is but tentative and could be changed. It is only after all the justices have been heard should the justices reach a judgment. No one opinion can be denigrated in importance for experience shows that an opinion that starts as a minority opinion could become the majority opinion after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its members.

9.ID.; ID.; ID.; SANDIGANBAYAN'S DECISION CONSIDERED VOID FOR VIOLATION THEREOF. We reject the rationalization that the opinion of Justice Amores was of de minimis importance as it cannot overturn the votes of the three justices convicting the petitioner. This is a mere guesswork. The more reasonable supposition is that said opinion could have changed the opinions of the other justices if it is based on an unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the petitioner despite a better opinion. Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the acquittal of the petitioner, that opinion will have an added value when petitioner appeals her conviction to this Court. Again; depending on its scholarship, that minority opinion could sway the opinion of this Court towards the acquittal of petitioner. Prescinding from those premises, it is indisputable that the decision of the First Division of the respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and procedural due process of law. 10.REMEDIAL LAW; JUDGMENT; A VOID JUDGMENT WILL NOT RESULT IN THE ACQUITTAL OF THE ACCUSED; EXCEPTION IN CASE AT BAR. It is opined, however, that this case should be remanded to the respondent Sandiganbayan for re-decision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal of an accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy. But the present case deserves a different treatment considering the great length of time it has been pending with our courts. Records reveal that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years passed but petitioner's prosecution is far from over. To remand the case to the Sandiganbayan will not sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution assures "all persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies." This right expands the right of an accused "to have a speedy, impartial, and publictrial . . ." In criminal cases guaranteed by Section 14(2) of Article III of the Constitution. It has a broadening effect because Section 16 covers the periods before, during and after trial whereas Section 14(2) covers only the trial period. Heretofore, we have held that an accused should be acquitted when his right to speedy trial has been violated. The rationale for both Section 14(2) and Section 16 of Article III of the Constitution is the same: "justice delayed is justice denied." Violation of either section should therefore result in the acquittal of the accused. 11.ID.; ID.; REMAND OF THE CASE TO THE COURT A QUO NOT PROPER IN CASE AT BAR. There are other reasons why the case should not be remanded to the court a quo. Three justices of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice Garchitorena's undue interference in the examination of witness Cuervo revealed his bias and prejudice against petitioner. As Mr. Justice Francisco observed "the court questions were so numerous' which as per petitioner Dans count totaled 179 compared to Prosecutor Querubin's questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading, and baseless hypothetical questions rolled into

one." Mr. Justice Francisco's opinion was concurred by Mr. Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice Francisco's observations on the lack of impartiality of Presiding Justice Garchitorena. They disregarded Mr. Ramon F. Cuervo's testimony and based the conviction of petitioner purely on the documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same evidence has been passed upon by the Third Division of this Court in formulating its judgment of affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand the case for a Special Division of five of the Sandiganbayan to render another decision in the case, with respect to the herein petitioner. DTIaCS Romero, J.: dissenting opinion: 1.CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; R.A. NO. 3019; SECTION 3(g) THEREOF; PETITIONER APPROVED AND AUTHORIZED SUBJECT LEASE AGREEMENT IN CASE AT BAR. While there is no dispute that the alleged conspiracy between petitioner and Dans in executing the lease agreement (Exhibit "B") was never proven by the prosecution, there is likewise no question, in fact, it is only too obvious, that petitioner could not have signed in behalf of the LRTA at the time even if she had wanted to do so because she was already signing for the other party, the PGH Foundation, Inc. This does not detract from the admitted fact that petitioner was the Chairman of the LRTA during the negotiations. Expectedly, petitioner, despite extensively lifting excerpts from the assailed decision, purposely omitted the Court's discussion on how the lease transaction was tainted by her conflict of interest, a glaring fact which has been repeatedly glossed over by petitioner and her counsel in the course of these proceedings. There is no dispute that petitioner was the chair of the LRTA at the execution of the lease agreement, but she chose to "enter" it as chair of the PGHFI. Moreover, it was conclusively demonstrated at the hearing on September 10, 1998, that although Dans was "duly authorized" to sign for the LRTA, it was the entire LRTA through its policy-making body, which approved the lease agreement. It is, therefore, erroneous for petitioner to argue that she did not enter into said agreement on behalf of the government because, certainly, she did. She may not have signed for the LRTA but she was one of those who approved it and duly authorized Dans to sign for the LRTA. ISCDEA 2.ID.; ID.; ID.; ID.; PETITIONER ENTERED INTO THE LEASE AGREEMENT IN BEHALF OF THE GOVERNMENT IN CASE AT BAR. It must be remembered that a lease agreement is a bilateral contract which gives rise to reciprocal rights and obligations on the part of the lessor and the lessee. It is an agreement which becomes a contract when the parties signify their consent or assent thereto, thereby reflecting the meeting of the minds between said parties. By himself, the lessor cannot enter into a contract of lease; there must be another party, the lessee, who will take possession of the property subject of the lease during its effectivity. Thus, when Dans "entered" into the lease agreement, he did so as representative of the lessor, petitioner did so in representation of the lessee. It is erroneous to state, as petitioner maintains in her motion for reconsideration, that she did not enter into the lease contract simply because she did not sign it, for certainly she did, as one of two indispensable parties. The immediate beneficiary of the lease was the government, represented by the LRTA. For all intents and purposes, brushing aside semantics, the lease agreement was entered into in behalf of the Government by both petitioner and Dans. 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT BASIS TO THE ALLEGED PROCEDURAL IRREGULARITIES IN CASE AT BAR. Shifting now to the alleged procedural anomaly which attended the promulgation of the assailed decision of the Sandiganbayan's First Division on account of Justice Garchitorena's unilateral dissolution of the Special Division which he himself had formed to break a voting impasse, I find petitioner's arguments in this regard to be shallow and self-serving, as will be presently elucidated. The principle that a Special Division in the Sandiganbayan cannot be stripped of jurisdiction once it is vested with the same was originally a rule in Civil Procedure first applied to trial courts, later to appellate courts. It is applicable to single sala courts or entire courts, but not to Divisions. Even the non-forum shopping rule refers to the filing of cases involving the same parties and causes of action from one court to another, and not from one Division to another. Secondly, there is no rule in the Sandiganbayan authorizing or disauthorizing a Chairman of a Division from dissolving a Special Division once it has effectively become functus officio. Third, by analogy, in appellate courts, such as the Court of Appeals, rules are fixed and practices have been established. In the Supreme Court, however, there are no rules regarding the dissolution of Special Divisions; hence, there is nothing against which the alleged procedural irregularities can be measured. 4.ID.; ID.; ID.; LAPSE IN PROCEDURE IN THE SANDIGANBAYAN WILL NOT RENDER ITS JUDGMENT NULL AND VOID. Assuming arguendo that there was a lapse in procedure in the Sandiganbayan, this will not render the judgment null and void. If at all, it may indicate the bias of the judge concerned which may be proved in an administrative case, but certainly not to render the judgment null and void. IcHTAa

Panganiban, J.: dissenting opinion: 1.CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; R.A. NO. 3019 SECTION 3(g) THEREOF; PERSON WHO AUTHORIZED, APPROVED OR ASSENTED TO ANY CONTRACT MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT MUST BE EQUALLY HELD ACCOUNTABLE FOR HAVING ENTERED INTO THE AGREEMENT. On the first ground, petitioner elucidates in her Memorandum that as a public officer, she did not sign the lease contract on behalf of the government. She merely signed it as chairperson of the Philippine General Hospital Foundation, Inc. (PGHFI). Ergo, she cannot be held liable for violating Section 3 (g) of RA 3019, the Anti-Graft Law. It does not take too much imagination to see the obvious flaw in this argument. Plainly, the law does not use the word "signing." It employs the word "entering." Definitely, signing is not the only way of entering into a transaction. Those who authorized, approved or assented to such contract must be held equally, if not more, accountable for having entered into the agreement. The

campaign against graft and corruption would be seriously undermined, if only the obedient underlings are punished while the bigwigs who ordered, authorized, approved or assented to such anomalous contracts are freed of accountability. That is simply unconscionable.

2.ID.; ID.; ID.; PETITIONER, AS PUBLIC OFFICIAL, DEEMED TO HAVE AUTHORIZED AND EFFECTIVELY ENTERED INTO THE LEASE AGREEMENT ON BEHALF OF THE GOVERNMENT. Being the chairman of the board at the time, Petitioner Marcos is assumed to have given her approval to the execution contract by the LRTA. She could or should have known that, indeed, the board she chaired gave such authority. She, however, insists that this fact has not been proven beyond reasonable doubt. I strongly disagree. What could her representation of the PGHFI, the other party to the lease agreement, manifest other than her full knowledge of and unqualified consent to the contract? In other words, Petitioner Marcos cannot deny her knowledge of and consent to the contract which LRTA entered into. She was the signing officer of the other party (the lessee) to the same contract! There was no way she could not have known with whom she was contracting (that is, that she was contracting virtually with herself), as well as the specific terms of the contract. She could not have blindly bound PGHFI to the agreement with LRTA, if she had disapproved of LRTA entering into the same contract. Considering that at the time she was not only LRTA chair, but also human settlements minister, Metropolitan Manila governor and First Lady, it is simply inconceivable that the LRTA board would authorize the contract without her approval! To hold otherwise is to be blind to the obvious. Verily, to all legal intents and purposes, Petitioner Marcos authorized and effectively "entered" into the lease agreement on behalf of LRTA, a government agency. Under the

circumstances of the case, to claim that she, as a public officer, did not approve of the lease by the LRTA is pure sophistry. And for her to add that, even if she knew of the transaction, she did not directly represent and sign for the government and is thus deserving of acquittal, is to render the Anti-Graft Law toothless. Furthermore, to insist that her approval must be independently proven "beyond reasonable doubt" is a futile and unworthy argument in the face of the very documents where, unquestionably, her signature appears.

3.ID.; ID.; ID.; PHRASE "MANIFEST AND GROSS," CONSTRUED. Petitioner avers that the prosecution failed to prove beyond reasonable doubt that "manifest and gross disadvantage to the government" was caused by the LRTA-PGHFITNCC masquerade. While the terms have not been explicitly defined by law or jurisprudence, I agree with the common and accepted meanings of manifest and gross, as culled by Solicitor General Galvez from Black's Law Dictionary: " 'Manifest' means obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, evident and self-evident. In evidence, that which is notorious. On the other hand, 'gross' means flagrant, shameful, such conduct as is not to be excused . . . ." The lease and sublease agreements, construed together, speak for themselves. There can be no stronger evidence of the blatant discrepancy in the rental amounts and the resulting "gross and manifest disadvantage" sustained by the lessor the LRTA, which is a government agency. 4.ID.; ID.; ID.; PETITIONER WAS WELL AWARE THAT SUBJECT LEASE AGREEMENT IS MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT. Petitioner repeatedly carps at the charges that she had authorized the anomalous transactions and that the government was placed at a gross and manifest disadvantage. She terms such conclusions "mere speculations or conjectures." They definitely are not . They are logical inferences from known and

proven facts, or matters that the Court may take judicial notice of. To require proof that petitioner directly admitted authorizing the two contracts is to demand the unreasonable. If she did that, there would have been no need for trial. To require such proof is to require a virtual confession of guilt! On the other hand, to ask for expert opinion on fair and reasonable rental in the face of hard evidence of actual rental value clearly demonstrating manifest and gross disadvantage is to require a superfluity, an exercise in legal inutility. In sum, petitioner was well aware of the manifest

and gross disadvantage incurred by the government, when the LRTA property was leased out for an almost token amount

through the execution of the subject contracts, which she, as a public official, was deemed to have entered into on behalf of the government. DIESaC 5.REMEDIAL LAW; EVIDENCE; CONSPIRACY; ABSENCE THEREOF DOES NOT NECESSARILY RESULT IN THE ACQUITTAL OF ALL CONSPIRATORS; PETITIONER CONVICTED BECAUSE OF HER OWN ACTS NOT BECAUSE OF CONSPIRATIONAL ACTS. Petitioner also harps on Dans' acquittal, arguing that she, as a mere conspirator, must also be acquitted. True, in conspiracy, the act of one is the act of all. But the converse does not always follow; the absence of conspiracy does not necessarily result in the acquittal of all or both alleged conspirators. The innocence of one is not absolute proof of the innocence of the other. For one may have acted independently of the other; and for one's own felonious acts, he or she alone is liable. Indeed, this Court found no evidence of conspiracy. And petitioner was convicted not because of conspiratorial acts, but because her own acts. In the instant case, Dans' guilt was not proven beyond reasonable doubt, because his participation in the sublease agreement had not been duly established. This cannot be said of Petitioner Marcos. There is no equivocation in the earlier finding that she actively participated in both the lease and the sublease. 6.ID.; ID.; EXPERT WITNESS' TESTIMONY CANNOT REBUT AND OVERCOME THE CONTENTS OF EXECUTED DOCUMENTS IN CASE AT BAR. Petitioner argues that the prosecution should have presented expert opinion to show which of the two rental amounts was the "fair and reasonable" price. However, the law (RA 3019) does not speak of fair or reasonable price. It speaks of "gross and manifest disadvantage." And what better evidence is there of such prejudice than the two contracts themselves, which show the great loss incurred by the people and the government. Opinion cannot prevail over hard fact! In view of these actual, concrete and operative contracts, which provided terms that were complete and facts that were indelible, expert opinion, if not entirely worthless, certainly cannot prevail. The expert witness' testimony cannot rebut and overcome the contents of the executed documents, specifically the rental price that the property actually commanded. 7.ID.; JUDGMENT; IRREGULARITY IN THE RENDITION THEREOF DOES NOT RENDER JUDGMENT VOID OR VOIDABLE. An error or irregularity in the rendition of a judgment does not affect the court's jurisdiction; neither does it affect the validity of the judgment. While error in jurisdiction makes the judgment or order void or voidable, an error in the exercise of jurisdiction does not. The decision rendered in the latter is correctable merely through an appeal. This remedy of appeal has already been availed of by petitioner's filing of the present recourse before this Court. Consistent with the above principles, I respectfully submit that the assailed Decision of the Sandiganbayan (First Division) cannot be rendered void (or even voidable) simply because of an irregularity, assuming arguendo that it existed, in its rendition. Worth noting is the fact that petitioner took the recourse of filing a petition for review under Rule 45, not a special civil action for certiorari under Rule 65, the proper remedy to annul judgments rendered without jurisdiction or with grave abuse of discretion. 8.ID.; SANDIGANBAYAN; HAS JURISDICTION AND AUTHORITY TO RESOLVE CASE AT BAR; CANNOT BE OUSTED OF JURISDICTION ON ALLEGATION OF FLAW IN THE RENDITION OF DECISION. I submit in the First Division of the

Sandiganbayan not only had the jurisdiction to resolve the case at bar, but the authority as well. The alleged flaw in the rendition of its Decision was a procedural technicality that did not oust it of jurisdiction While the initial absence of a

unanimous concurrence of the three members in the said Division necessitated the designation of two additional justices to form a temporary special division of five, it must be stressed that the purpose of such designation was simply to obtain the concurrence of at least three in the final judgment, pursuant to the requirement of P.D. 1606. 9.ID.; ID.; REMAND OF THE CASE THERETO CONSIDERED A VIRTUAL APPROBATION OF TRIFLING WITH THE JUDICIAL PROCESS. Petitioner's plea for acquittal due to the alleged nullity of the Sandiganbayan judgment cannot be granted. A void judgment of conviction may entitle the accused only to a remand of the case to the trial court for further proceedings conformably with law. A remand of her case to the graft court for another full-length ,proceeding will not

only be a waste of time and effort, but a virtual approbation of trifling with the judicial process, a mockery of it. It would be a cop-out.

10.ID.; COURTS; SHOULD NOT BE OVERLY STRICT WITH PROCEDURAL LAPSES THAT DO NOT IMPAIR THE PROPER ADMINISTRATION OF JUSTICE. While it is desirable to observe procedural rules faithfully and even meticulously, courts should not be overly strict with procedural lapses that do not really impair the proper administration of justice. Rules are mere tools designed to facilitate the administration and the attainment of justice. Where no serious injustice or grave abuse of discretion is committed, a suspension of the operation of adjective rules is not proscribed. 11.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO DUE PROCESS; PETITIONER ACCORDED FULL OPPORTUNITY TO BE HEARD IN CASE AT BAR. In the case at bar, no substantive right of petitioner was traversed by the First

Division of the Sandiganbayan. She was given full opportunity to participate in the trial. All the defenses she offered were addressed by the court a quo, as well as by this Court. All the points factual, procedural and legal that she raised in her 93-page Petition were thoroughly taken up in the earlier Decision of this Court's Third Division. Through her Motion for Reconsideration and by way of oral argument and written memorandum, she was given several opportunities to amplify the same defenses before the Court en banc. I say, she has been more than fully heard.

12.ID.; ID.; RIGHT TO COUNSEL; NO DENIAL THEREOF IN CASE AT BAR. Records clearly show that Petitioner Marcos was represented by counsel during the entire trial proceedings. The failure of her counsel to appear in a couple of scheduled hearings is not equivalent to a deprivation by the Sandiganbayan of her right to counsel. In her own words, "[n]otices of hearing were being sent directly to her," and her counsel "was apparently notified." Aside from the written notices, she was also informed by telephone. But, apparently, she chose not to be present; neither did she ensure the presence of her counsel in all the hearings. Well-settled is the rule that the negligence of counsel binds the party-litigant. It is also incumbent upon a party to take an active role. Neither did the suspension of her initial counsel of record (Atty. Antonio Coronel) from the practice of law amount to a deprivation of her right to counsel. She was continually represented by various lawyers. The fact that some were condemned by the Sandiganbayan for effectively continuing the practice of Atty. Coronel did not altogether forfeit her representation. It does not appear that the actual participation of any of these condemned lawyers during the proceedings or any of the pleadings they had filed was stricken from the records or disregarded by the court a quo. In any event, as I have mentioned earlier, petitioner's defenses, even those belatedly raised before this Court only, have been thoroughly reviewed, evaluated and duly considered. Whatever

shortcomings, if any, she may have perceived in the Sandiganbayan proceedings must have seen rectified by this Court, even twice over by the Third Division and by the banc. Here, she is represented by one of the most adroit legal minds in this country, Atty. Estelito P. Mendoza. No longer can she whimper and whine about counsel deprivation.
KAPUNAN, J., separate concurring opinion:

1.ADMINISTRATIVE LAW; PUBLIC OFFICERS; CONFLICT OF INTEREST; ABSENCE THEREOF IN CASE AT BAR. Petitioner Marcos and Dans were virtually charged with conflict of interest in Criminal Case Nos. 17449, 17451 and 17453. But they were cleared by the Sandiganbayan; their acquittal has laid to rest the accusation that they acted in a double capacity. SDEHCc 2.REMEDIAL LAW; EVIDENCE; PROOF OF GUILT; BARE ASSUMPTIONS AND SPECULATIONS CANNOT BE BASES FOR CONVICTION. It is pure speculation and conjecture to allege that petitioner Marcos acted for the LRTA or is assumed to have given her approval to the execution of the Lease Agreement by the LRTA being Chairman thereof. There is no iota of proof at all that petitioner Marcos was present or had participated in any meeting of the LRTA Board of Directors authorizing the agreement. To convict, there should be proof of guilt beyond reasonable doubt. Bare assumptions and speculations cannot be bases for conviction. 3.ID ; ID.; CONSPIRACY; NOT ESTABLISHED IN CASE AT BAR. If petitioner Marcos had taken part in any action of the Board, why were the other members of the Board not included in the Information for violation of Sec 3(g) of R A No 3019? The decision of the Third Division of the Court itself has provided the answer when it stated that "this Court's opinion that the alleged conspiracy between the petitioners (Marcos and Dans) was not sufficiently established by the state's evidence" (page 22) Verily, having found that the alleged conspiracy between petitioner Marcos and Dans has not been established, no act committed by Dans may be imputed to Marcos, in the same way that it is purely guesswork to insinuate that the act of the LRTA in authorizing the Leave Agreement may be imputed to petitioner Marcos, absent any semblance of proof. 4.ID.; ID.; DOCUMENTARY EVIDENCE INSUFFICIENT TO CONVICT PETITIONER OF VIOLATION OF SEC 3(g) OF R.A. NO. 3019. I feel quite uneasy with the method used by the prosecution in determining that the government was grossly disadvantaged in the Lease Agreement, this is, by simply comparing the rental in the Lease Agreement and that in the sub-lease contract. Just by considering the disparity in the rentals, cannot it be argued as well that the lease rental is fair and reasonable and the sublease rental is too high? Supposing there was no sublease contract at all, or the sublease rental was equal or lower than that in the Lease Agreement, would the conclusion of the Court be the same, considering that there would then be nothing to compare the lease rental with? The point I am trying to drive at is that proof should have been adduced to determine the fair market value of the Pasay lot based on the market data approach which considers how much properties in that particular area were sold or offered to be sold. Curiously enough, when Sandiganbayan Chief Prosecutor Leonardo P. Tamayo was asked during the oral argument before the Court on

September 10, 1998, why no such independent evidence was presented by the prosecution, he answered that he was not then involved in the case, but added that if he were the prosecutor, he would have adduced such evidence. This is an admission that the prosecution's evidence against Marcos is sorely lacking. 5.REMEDIAL LAW; COURTS; SANDIGANBAYAN; INFORMAL MEETING OF THE JUSTICES THEREOF AT A RESTAURANT WHERE CRIMINAL CASES WERE DISCUSSED, NOT SANCTIONED BY LAW AND THE RULES; AGREEMENT MADE HAS NO BINDING EFFECT. The informal meeting of the Justices at a Quezon City restaurant where the criminal cases were discussed or taken up (perhaps as part of the menu, a Justice of the Court commented during the oral argument) is not sanctioned by law and the rules. Besides, it goes without saying, there are certain formalities to be followed for meetings and deliberations by a collegial body. There should be an agenda, with advance notice of what cases are to be deliberated upon or matters to be taken up. The reason for these formalities is obvious. The members should be notified of the session to assure their presence and to enable them to prepare and discuss intelligently and authoritatively the matters to be taken up. Justices Amores and Atienza were not present because they were not notified. Thus, Justice Amores' views were not ventilated because he was not aware of the meeting. Hence, I agree with the dissenting opinion of Justice Francisco that whatever discussion and agreement was made among the Justices present in the restaurant cannot be considered as "official business" and, therefore, has no binding effect. 6.ID.; ID.; ID.; JURISDICTION; ONCE JURISDICTION TO TRY A CRIMINAL CASE IS ACQUIRED, IT REMAINS WITH THE COURT UNTIL IT IS FINALLY DECIDED. The moment the Special Division of five justices was created, it assumed jurisdiction over the criminal cases to the exclusion of the First Division. It is a fundamental rule that once jurisdiction to try a criminal case is acquired, it remains with the court until it is finally decided. The mere fact that the original three members of the First Division of the Sandiganbayan had arrived at a unanimity over the issues on which they had been previously divided did not authorize the Presiding Justice to abolish the Special Division of five justices and refer the cases back to the First Division. Besides, if the majority of the Special Division had already arrived at a consensus and was ready to vote, why did it not simply and promptly vote on the cases and promulgate the judgment itself, instead of resorting to the rigmarole of dissolving the body and returning the cases to the First Division? 7.ID.; ID.; ID.; ID.; WHATEVER OPINION A JUSTICE HAD ENTERTAINED OF THE CASE WHILE IT WAS BEING DELIBERATED UPON IN THE REGULAR DIVISION DOES NOT BIND HIM AS MEMBER OF THE SPECIAL DIVISION. I am not persuaded by the contention that since the Rules do not provide how and by whom a special division may be dissolved, the Presiding Justice has the authority to order the dissolution. As already mentioned, once jurisdiction to try a criminal case is acquired, the court retains jurisdiction to try it until finally disposed of. Moreover, a Sandiganbayan regular division and a Special Division of five that may be created in case of lack of unanimity by the former are not one and the same body, albeit three members of the special division are also members of the regular division. When a justice participates in the deliberation of the special division and votes, he does so as a member of that special division, not as a member of the regular division to which he belongs. Whatever opinion or view he had entertained of the case while it was being deliberated upon in the regular division does not bind him as a member of the special division. 8.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; IMMUTABLE PRINCIPLE THAT APPLIES TO ALL. The martial law days may be far behind us but we have certainly not forgotten. No matter the odds, the toil continues to bring to justice all who have abused power and betrayed the Filipino people. This pursuit, however, is, or should be, tempered by the lessons from our past. We must forever be true to our vow to be faithful to the letter of the law and the dictates of due process, and not be distracted by the personalities involved. For the right to due process and the rule of law are immutable principles in a democratic society that should apply to all, even to those we hate. 9.CRIMINAL LAW; R.A. No. 3019; SECTION 3(g) THEREOF; PERCEIVED DISADVANTAGED TO THE GOVERNMENT OF THE SUBJECT LEASE AGREEMENT NEGATED BY THE BENEFITS REAPED BY GOVERNMENT-OWNED HOSPITAL. An essential element of Section 3(g) of R.A. No. 3019 is that the contract entered into by the public officer concerned is manifestly and grossly disadvantageous to the government. In the case, at bar, a close scrutiny, however, reveals that the main and ultimate beneficiary of the subject transactions was the government-owned hospital, the Philippine General Hospital (PGH). The Philippine General Hospital Foundation, Inc. (PGHFI) was established as a charitable organization. The funds it raised eventually went to the rehabilitation and support of the PGH as evidenced by the list of various medical equipment, drugs and supplies donated by the foundation to the said hospital. There is no allegation, much less proof, that Marcos misappropriated a single centavo from the transactions. Since the major recipient of the high rentals negotiated by PGHFI (with private corporations) was one of the state-run medical facilities, the perceived disadvantage to the LRTA was negated by the benefits reaped by PGH. In the end, therefore, albeit indirectly, the ultimate gain still went to the government. EDSHcT

RESOLUTION

PURISIMA, J p: This scenic Philippine archipelago is a citadel of justice, due process and rule of law. Succinct and clear is the provision of the constitution of this great Republic that every accused is presumed innocent until the contrary is proved. [Art. III, Sec. 14(2)]. As held in People of the Philippines vs. Ellizabeth Ganguso y Decena (G.R. No. 115430 November 23, 1995, 250 SCRA 268, 274-275): "An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged." cdasia So also, well settled, to the point of being elementary, is the doctrine that when inculpatory facts are susceptible to two or more interpretations, one of which is consistent with the innocence of the accused, the evidence does not fulfill or hurdle the test of moral certainty required for conviction. (People of the Philippines vs. Eric F . Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373 citing People vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs.Raquel, 265 SCRA 248; People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562; People vs. Salangga, 234 SCRA 407) Mindful of and guided by the aforecited constitutional and legal precepts, doctrines and principles prevailing in this jurisdiction, should petitioner's Motion for Reconsideration be granted? Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, alleges: "That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, MetroManila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. CONTRARY TO LAW." The case was raffled off to the First Division of the Sandiganbayan, with Presiding Justice Francis E. Garchitorena, as Chairman and Justices Jose S. Balajadia and Narciso T. Atienza, as members. On September 15, 1993, when the First Division failed to comply with the legal requirement of unanimity of its three members due to the dissent of Justice Narciso T. Atienza, Presiding Justice Garchitorena issued Administrative Order No. 288-93 constituting a Special Division of five and designating Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members.

On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena requesting that he be given fifteen (15) days to send in his Manifestation. However, on the same day, September 21, 1993, when Justice Balajadia and Presiding Justice Garchitorena agreed with the opinion of Justice Del Rosario, Presiding Justice Garchitorena issued Administrative Order No. 293-93, dissolving the Special Division of Five, without waiting for Justice Amores' manifestation. Justice Garchitorena considered the said request of Justice Amores as " pointless because of the agreement of Justice Balajadia and the undersigned to the conclusion reached by Justice Atienza ." Thus, on September 24, 1993, the now assailed decision was handed down by the First Division of the Sandiganbayan. Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr. with a violation of Section 3(g) of RA 3019 the following elements of the offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject Contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the government. There is no dispute that sometime in the year 1984, the herein petitioner Imelda R. Marcos, was Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of Transportation and Communication. The two served as ex oficioChairman and Vice Chairman respectively, of the Light Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of the Board of Trustees of the Philippine General Hospital Foundation, Inc. ( PGHFI). On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI and Jose P. Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement (Exhibit "B") by virtue of which LRTA leased to PGHFI subject lot with an area of 7,340 square meters, at a monthly rental of P102,760.00 for a period of twenty-five (25) years. On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and Transnational Construction Corporation, represented by its President Ignacio B. Gimenez, signed the Sublease Agreement ( Exhibit "D"), wherein said lessee rented the same area of 7,340 square meters for P734,000.00 a month, for a period of twenty-five (25) years. For executing the aforesaid Lease Agreement (Exhibit "B"), petitioner and Jose P. Dans, Jr. were indicted in the said Information, for conspiring and confederating with each other in entering into subject Lease Agreement alleged to be manifestly and grossly disadvantageous to the government. After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and Jose P. Dans, Jr. of the offense charged. On June 29, 1998, the Third Division of this court came out with its decision affirming the judgment, as against petitioner Imelda R. Marcos, in G.R. No. 126995, but reversing the same judgment, as against Jose P. Dans, Jr., in G.R. No. 127073. In affirming the judgment of conviction against petitioner, the Third Division found the rental price stipulated in the Lease Agreement, (Exhibit "B") unfair and unreasonably low, upon a comparison with the rental rate in the Sub-lease Agreement (Exhibit "D"), which contract petitioner subsequently signed on behalf of PGHFI with TNCC. Undaunted, the petitioner interposed the present Motion for Reconsideration. The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As regards the first element did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit "B" as a public officer? As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as ex-officio Vice Chairman of LRTA. Although petitioner was the ex-officio Chairman of LRTA, at the time there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the Lease Agreement sued upon. In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting. It bears stressing, in this connection, that Jose P. Dans, Jr., the public officer who signed the said Lease Agreement (Exhibit "B") for LRTA was acquitted.

As regards the second element of the offense that such Lease Agreement is grossly and manifestly disadvantageous to the government, the respondent court based its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease Agreement is P734,000,00. After comparing the two rental rates aforementioned, the respondent court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the government. But Exhibit "B" does not prove that the said contract entered into by petitioner is "manifestly and grossly disadvantageous to the government." There is no established standard by which Exhibit "B"'s rental provisions could be adjudged prejudicial to LRTA or the entire government. Exhibit "B" standing alone does not prove any offense. Neither does Exhibit "B" together with the Sub-lease Agreement (Exhibit "D") prove the offense charged. At most, it creates only a doubt in the mind of the objective readers as to which (between the lease and sub-lease rental rates) is the fair and reasonable one, considering the different circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA nor the Government suffered any injury. There is, therefore insufficient evidence to prove petitioner's guilt beyond reasonable doubt. Verily it is too obvious to require an extended disquisition that the only basis of the respondent court for condemning the Lease Agreement (Exhibit "B") as "manifestly and grossly disadvantageous to the government " was a comparison of the rental rate in the Lease Agreement with the very much higher rental price under the Sub-Lease Agreement (Exhibit "D"). Certainly, such a comparison is purely speculative and violative of due process. The mere fact that the Sub-lease Agreement provides a monthly rental of P734,000.00 does not necessarily mean that the rental price of P102,760.00 per month under the Lease Agreement (Exhibit "B") is very low, unreasonable and manifestly and grossly disadvantageous to the government. There are many factors to consider in the determination of what is a reasonable rate of rental.

What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was inked, the rental rate therein provided was based on a study conducted in accordance with generally accepted rules of rental computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate appraiser who testified in the case as an expert witness and whose impartiality and competence were never impugned, assured the court that the rental price stipulated in the Lease Agreement under scrutiny was fair and adequate. According to him, witness, the reasonable rental for subject property at the time of execution of Exhibit "B" was only P73,000.00 per month. That the Sub-lease Agreement (Exhibit "D") was for a very much higher rental rate of P734,000.00 a month is of no moment. This circumstance did not necessarily render the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous to the government. Not even a single lease contract covering a property within the vicinity of the said leased premises was offered in evidence. The disparity between the rental price of the Lease Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the prosecution, "that the Lease Agreement in question is manifestly and grossly disadvantageous to the government. "Gross" is a comparative term. Before it can be considered "gross", there must be a standard by which the same is weighed and measured. All things viewed in proper perspective, it is decisively clear that there is a glaring absence of substantiation that the Lease Agreement under controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution. Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate of P734,000.00 a month, did not result in any disadvantage to the government because obviously, the rental income realized by PGHFI from the Sub-lease Agreement (Exhibit "D") augmented the financial support for and improved the management and operation of the Philippine General Hospital, which is, after all, a government hospital of the people and for the people. Another sustainable ground for the granting of petitioner's motion for reconsideration is the failure and inability of the prosecution to prove that petitioner was present when the Board of Directors of LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex officio chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there is no evidence whatsoever to show that she attended the board meeting of LRTA which deliberated and acted upon subject Lease Agreement ( Exhibit "B"). It is thus beyond cavil that petitioner

signed the said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and not as a public officer. Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot be viewed as an act of the former. Petitioner is only answerable for her own individual act. Consequently, petitioner not having signed Exhibit "B" as a public officer, there is neither legal nor factual basis for her conviction under Section 3 (g) of Rep. Act 3019. It bears repeating that apart from the Lease Agreement and Sub-lease Agreement marked Exhibits "B" and "D", respectively, the prosecution offered no other evidence to prove the accusation at bar. What makes petitioner's stance the more meritorious and impregnable is the patent violation of her right to due process, substantive and procedural, by the respondent court. Records disclose that: (a) the First Division of the Sandiganbayan composed of Presiding Justice Garchitorena and Associate Justices Balajadia and Atienza could not agree on whether to convict or acquit the petitioner in the five (5) criminal cases pending against her. Justice Atienza was in favor of exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452. Justices Garchitorena and Balajadia wanted to convict her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there was no unanimity of votes in Criminal Case Nos. 17451 and 17452 (b) on September 15, 1993, in accordance with Sec. 5 of P. D. No. 1606, Presiding Justice Garchitorena issued Adm. Order No. 288-93 constituting a Special Division of five (5) justices, and naming thereto, Justices Augusto M. Amores and Cipriano A. del Rosario. (c) on September 21, 1993, Justice Amores sent a written request to Presiding Justice Garchitorena asking that he be given fifteen (15) days to submit his Manifestation; (d) on the same day, September 21, 1993, however, Presiding Justice Garchitorena and Justices Balajadia and del Rosario, after attending a hearing of the Committee of Justice of the House of Representatives, lunched together in a Quezon City restaurant where they discussed petitioner's cases in the absence of Justices Atienza and Amores and in the presence of a non-member of the Special Division. Thereat, Presiding Justice Garchitorena, and Justices Balajadia and del Rosario agreed with the position of Justice Atienza to acquit petitioner in Criminal Case Nos. 17449, 17451 and 17452 and to convict her in the other cases; and (e) when the Justices returned to the official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order No. 293-93 dissolving the Special Division. cda Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its "decision" convicting petitioner for the following reasons, viz:

First. Section 4, Rule VI categorically provides that "sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila where it shall try and determine all cases filed with it . . .." This rule
reiterates Sec. 2 of P. D. No. 1606, as amended, creating the Sandiganbayan.

Second. The rules of Sandiganbayan do not allow unscheduled discussion of cases. We take judicial notice of the

procedure that cases in all courts are carefully calendared and advance notices are given to judges and justices to enable them to study and prepare for deliberation. The calendaring of cases cannot be the subject of anybody's whims and caprices.

Third. The rules of Sandiganbayan do not also allow informal discussion of cases. The deliberations in case at bar did not
appear on record. The informal discussion of the three justices came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled "Response," revealed for the first time the informal discussion of petitioner's cases at an unnamed restaurant in Quezon City. There is no way to know how the discussion was conducted as it was not minuted.

Fourth. The rules of the Sandiganbayan do not allow the presence of a non-member in the deliberation of cases. In the
case at bar a certain justice was present when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioner's cases while taking their lunch in a Quezon City restaurant.

Fifth. The rules of the Sandiganbayan do not allow the exclusion of a member of a Division, whether regular or special, in
the deliberation of cases. Justices Atienza and Amores were members of the Special Division but were not present when petitioner's cases were discussed over lunch in a Quezon City restaurant. They were not notified of the informal, unscheduled meeting. In fact, Justice Amores had a pending request for 15 days to study petitioner's cases. In effect, Atienza and Amores were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner.

These irregularities violated the right of petitioner to be tried by a collegial court. Under PD No. 1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted except upon the vote of three justices, regardless of whether her cases are before a regular division of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three (3) justices is the process by which they arrive at their vote. It isindispensable that their vote be preceded by discussion and deliberation by all the members of the division. Before the deliberation by all, any opinion of a Justice is but tentative and could be changed. It is only after all the Justices have been heard should the justices reach a judgment. No one opinion can be denigrated in importance for experience shows that an opinion that starts as a minority opinion could become the majority opinion after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its members. In the case at bar, Presiding Justice Garchitorena had already created the Special Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the First Division. At that stage, petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the persons of Justices Amores and del Rosario who may have a different view of the cases against her. At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested right to the opinion of Justices Amores and del Rosario. It may be true that Justice del Rosario had already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated by law. But what is more, petitioner was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena dissolved the Special Division.

We reject the rationalization that the opinion of Justice Amores was of de minimis importance as it cannot overturn the votes of the three Justices convicting the petitioner. This is a mere guesswork. The more reasonable supposition is that said opinion could have changed the opinions of the other justices if it is based on an unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the petitioner despite a better opinion. Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the acquittal of the petitioner, that opinion will have an added value when petitioner appeals her conviction to this Court. Again, depending on its scholarship, that minority opinion could sway the opinion of this Court towards the acquittal of petitioner. Prescinding from those premises, it is indisputable that the decision of the First Division of the respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and procedural due process of law. It is opined, however, that this case should be remanded to the respondent Sandiganbayan for re-decision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal of an accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy. But the present case deserves a different treatment considering the great length of time it has been pending with our courts. Records reveal that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years passed but petitioner's prosecution is far from over. To remand the case to the Sandiganbayan will not sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution assures "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." This right expands the right of an accused "to have a speedy, impartial, and public trial . . ." in criminal cases guaranteed by Section 14(2) of Article III of the Constitution. It has a broadening effect because Section 16 covers the periods before, during and after trial whereas Section 14(2) covers only the trial period. 1 Heretofore, we have held that an accused should be acquitted when his right to speedy trial has been violated. Thus, in the early 1936 case of People vs. Castaeda, et al. 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held: "A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five (5) years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had been confined in prison

from July 20, 1932 to November 27, 1934 for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of Justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused to come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650)." We reiterated this rule in Acebedo vs. Sarmiento, viz: 2 "2.More specifically, this Court has consistently adhered to the view that a dismissal based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at continuing the prosecution or starting a new one would fall within the prohibition against an accused being twice put in jeopardy. The extensive opinion of Justice Castro in People vs. Obsania noted earlier made reference to four Philippine decisions, People vs. Diaz, People vs. Abao, People vs. Robles, and People vs. Cloribel. In all of the above case, this Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the disregard of his right to a speedy trial was tantamount to an acquittal. In People vs. Diaz, it was shown that the case was set for hearing twice and the prosecution without asking for postponement or giving any explanation failed to appear. In People vs. Abao, the facts disclosed that there were three postponements. Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case was absent, this Court held that respondent Judge was justified in dismissing the case upon motion of the defense and that the annulment or setting aside of the order of dismissal would place the accused twice in jeopardy of punishment for the same offense. People vs. Robles likewise presented a picture of witnesses for the prosecution not being available, with the lower court after having transferred the hearings on several occasions denying the last plea for postponement and dismissing the case. Such order of dismissal, according to this Court "is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense." This is a summary of the Cloribel case as set forth in the above opinion of Justice Castro. "In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held, " that the dismissal here complained of was not

truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial.' (Emphasis supplied)" There is no escaping the conclusion then that petitioner here has clearly
made out a case of an acquittal arising from the order of dismissal given in open court."

The rationale for both Section 14(2) and section 16 of Article III of the Constitution is the same: "justice delayed is justice denied." Violation of either section should therefore result in the acquittal of the accused. There are other reasons why the case should not be remanded to the court a quo. Three justices of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice Garchitorena's undue interference in the examination of witness Cuervo revealed his bias and prejudice against petitioner. 3 As Mr. Justice Francisco observed "the court questions were so numerous which as per petitioner Dans count totaled 179 compared to prosecutor Querubin's questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading, and baseless hypothetical questions rolled into one." 4 Mr. Justice Francisco's opinion was concurred by Mr. Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice Francisco's observations on the lack of impartiality of Presiding Justice Garchitorena. They disregarded Mr. Ramon F. Cuervo's testimony and based the conviction of petitioner purely on the documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same evidence has been passed upon by the Third Division of this Court in formulating its judgment of affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand the case for a Special Division of five of the Sandiganbayan to render another decision in the case, with respect to the herein petitioner. I consider this opinion incomplete without quoting herein the following portion of the concurring and dissenting opinion of former Associate Justice Ricardo J. Francisco dated January 29, 1998:

"Thus, purely from the legal standpoint, with the evident weakness of the prosecution's case and the procedural aberrations that marred the trial, it is simply unsound and impossible to treat differently each petitioner who found themselves in one and the same situation. Indeed, our regained democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it expects that government efforts in going after the plunderers of that dark past remain unrelenting and decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal justice system is not a popularity contest where freedom and punishment are determined merely by the fame or infamy of the litigants. "The scales of justice", it has been aptly said 5 "must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past." Culpability for crimes must always take its bearing from evidence and universal precepts of due process lest we sacrifice in mocking shame once again the very liberties we are defending." cdrep

IN VIEW OF THE FOREGOING, the Motion for Reconsideration under consideration is hereby GRANTED and petitioner Imelda R. Marcos is hereby ACQUITTED of the offense charged. Costs de oficio. SO ORDERED.

Martinez and Quisumbing, JJ ., concur. Puno, J ., I vote for acquittal: (1) petitioner's trial was not impartial and (2) petitioner was convicted on a Division of the
Sandiganbayan without jurisdiction.

Vitug, J ., I vote for remanding the case in order to allow the corrections of the perceived "irregularities" in the
proceedings below.

Mendoza, J ., I concur on the ground of insufficiency of evidence.

EN BANC [G.R. No. 115147. January 4, 1995.] GEORGE I. RIVERA, petitioner, vs. CIVIL SERVICE COMMISSION and LAND BANK OF THE PHILIPPINES, respondents.

Soo, Gutierrez and Lee for petitioner.


SYLLABUS REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; DENIAL OF DUE PROCESS; CASE WHERE REVIEWING OFFICER REVIEWS HIS OWN DECISION. Petitioner was denied due process when Hon. Thelma P. Gaminde, who earlier participated in her capacity as the Board Chairman of the MSPB when the latter had taken action on LBP's motion for reconsideration, also took part, this time as a CSC Commissioner, in the resolution of petitioner's motion for reconsideration with the CSC. In Zambales Chromite Mining Company vs. Court of Appeals, (94 SCRA 261) the decision of the Secretary of Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal from the Secretary's own previous decision he handed down while he was yet the incumbent Director of Mines. Calling the act of the Secretary a "mockery of administrative justice," the Court said: "In order that the review of the decision of a subordinate officer might not turn out to be a farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no

real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case." Here it should have behooved Commissioner Gaminde to inhibit herself totally from any participation in resolving Rivera's appeal to CSC if we are to give full meaning and consequence to a fundamental aspect of due process. The argument that Commissioner Gaminde did not participate in MSPB's decision of 29 August 1990 is unacceptable. It is not denied that she did participate, indeed has concurred, in MSPB's resolution of 03 March 1994, denying the motion for reconsideration of MSPB's decision of 29 August 1990.

RESOLUTION

VITUG, J p: This petition for certiorari assails the resolution, dated 25 March 1993, of respondent Civil Service Commission ("CSC") relative to an administrative case, entitled " Land Bank of the Philippines vs. George I. Rivera," as well as its resolution, dated 03 March 1994, denying the motion for reconsideration. cdphil Petitioner George I. Rivera was the Manager of Corporate Banking Unit I of the Land Bank of the Philippines ("LBP"). On the basis of the affidavits of William Lao and Jesus C. Perez, petitioner was charged, on 01 February 1988, by the LBP President with having committed the following offenses: "(1)Dishonesty; "(2)Receiving for personal use of fee, gift or other valuable thing, in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons; "(3)Committing acts punishable under the Anti-Graft laws; "(4)Pursuit of private business vocation or profession without the permission required by Civil Service Rules and regulations; "(5)Violation of Memorandum Circular No. 1025, Office of the President, dated November 25, 1977; and "(6)Violation of Res. 87-A, R.A. No. 337; resulting to misconduct and conduct prejudicial to the best interest of the service." 1 Rivera allegedly told Perez, the Marketing Manager of Wynner which had a pending loan application with LBP, that he could facilitate the processing, approval and release of the loan if he would be given a ten percent (10%) commission. Rivera was said to have subsequently received a P200,000.00 commission out of the P3,000,000.00 loan proceeds from the LBP. From Lao, who had substantial investments in Wynner, Rivera supposedly likewise received the amount of approximately P20,000.00 pocket money for his trip to the United States, as well as additional funds for his plane ticket, hotel accommodations and pocket money for still another trip to Hongkong. LLjur Rivera was further charged with, among other things, having served and acted, without prior authority required by Civil Service Rules and Memorandum Circular No. 1025 of the Office of the President of the Philippines, as the personal consultant of Lao and as consultant in various companies where Lao had investments. He drew and received salaries and allowances approximately P20,000.00 a month evidenced by vouchers of Edge Apparel, Inc., J & M Clothing Corporation, and JME Trading Corporation. Once the charges were filed, Rivera was placed under preventive suspension (effective 19 February 1988). After a formal investigation, the LBP held Rivera guilty of grave misconduct and acts prejudicial to the best interest of the service in accepting employment from a client of the bank and in thereby receiving salaries and allowances in violation of Section 12, Rule XVIII, of the Revised Civil Service Rules. He was also found to have transgressed the prohibition in Section 3, paragraph (d), of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019, as

amended). The penalty of forced resignation, without separation benefits and gratuities, was thereupon imposed on Rivera. Cdpr On appeal, the decision was modified by the Merit Systems Protection Board ("MSPB") which held. 2 "In view of the foregoing, the decision appealed from is hereby modified that respondent-appellant George I. Rivera is considered guilty only of committing acts prejudicial to the best interest of the service. Considering that this is his first offense on record, the penalty of Forced Resignation without separation benefits and gratuities to which he may be otherwise be entitled under the laws is reduced to one (1) year suspension." 3 The LBP filed a motion for the reconsideration of MSPB's decision. In its resolution, 4 promulgated on 08 June 1992, the MSPB denied the motion. Rivera and the LBP both appealed to the CSC. In its Resolution No. 93-1189, 5 the CSC resolved only the appeal of Rivera (rejecting that of the LBP pursuant to the rule laid down by his Court in Magpale vs. Civil Service Commission [215 SCRA 398]). The resolution, in part, read: "The Commission is inclined to sustain the original decision of the Land Bank of the Philippines. Committing an act punishable under the Anti-Graft and Corrupt Practices Act (RA 3019) is considered a Grave Misconduct. It is a wanton and/or blatant violation of law. As an officer of the Bank, respondent Rivera should know better that it was illegal and improper for him to accept regular monthly allowances from a private firm which is a client of his Bank. More so, that such act is prohibited and punishable under Sec. 3(d) of RA 3019. "WHEREFORE, foregoing premises considered, the Commission resolves to dismiss the appeal of Respondent George Rivera. Moreover, the Commission finds him guilty of Grave Misconduct for which he is meted out the penalty of dismissal from the service. Accordingly, the MSPB decision is hereby set aside." 6 Rivera filed a motion for reconsideration, which the CSC denied in its Resolution No. 94-1276. 7 Hence, the instant petition. cdll Petitioner averred that the CSC committed grave abuse of discretion in imposing the capital penalty of dismissal on the basis of unsubstantiated findings and conclusions. On 26 May 1994, this Court resolved to dismiss the petition for petitioner's failure to sufficiently show that CSC acted with grave abuse of discretion in issuing its questioned resolution. Rivera filed a motion for the reconsideration of the Court's dismissal of the petition, now strongly asserting that he was denied due process when Hon. Thelma P. Gaminde, who earlier participated in her capacity as the Board Chairman of the MSPB when the latter had taken action on LBP's motion for reconsideration, also took part, this time as a CSC Commissioner, in the resolution of petitioner's motion for reconsideration with the CSC. The Court, in its resolution of 05 July 1994, resolved to grant the motion, to reinstate the petition and to require respondents to comment thereon. The Office of the Solicitor General, in its comment, dated 15 September 1994, sided with petitioner and suggested that the CSC be given an opportunity to submit its own comment. CSC did in due time. This is not the first time that the Court has been confronted with this kind of prejudicial issue. In Zambales Chromite Mining Company vs. Court of Appeals, 8 the decision of the Secretary of Agriculture and Natural Resources was set aside by this court after it had been established that the case concerned an appeal from the Secretary's own previous decision he handed down while he was yet the incumbent Director of Mines. Calling the act of the Secretary a "mockery of administrative justice," the Court said: "In order that the review of the decision of a subordinate officer might not turn out to be a farce, then reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case." The Court similarly struck down a decision of Presidential Executive Assistant Jacobo Clave over a resolution of the Civil Service Commission, in which he, then concurrently its chairman, had earlier "concurred." 9

Given the circumstances in the case at bench, it should have behooved Commissioner Gaminde to inhibit herself totally from any participation in resolving Rivera's appeal to CSC if we are to give full meaning and consequence to a fundamental aspect of due process. The argument that Commissioner Gaminde did not participate in MSPB's decision of 29 August 1990 is unacceptable. It is not denied that she did participate, indeed has concurred, in MSPB's resolution of 03 March 1994, denying the motion for reconsideration of MSPB's decision of 29 August 1990. cdrep WHEREFORE, CSC Resolution No. 94-1276 is SET ASIDE, and the case is REMANDED to respondent Civil Service Commission for the resolution, sans the participation of Commissioner Thelma P. Gaminde, of herein petitioner's motion for reconsideration of CSC Resolution No. 93-1189. No costs. cdll SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and Mendoza, JJ.,concur. Feliciano, J., is on leave. Kapunan, J., took no part.

FIRST DIVISION [G.R. Nos. 131638-39. March 26, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LORETO MEDENILLA y DORIA, accusedappellant.

DECISION

KAPUNAN, J p: This is an appeal from a joint decision of the Regional Trial Court of Pasig, Branch 262, promulgated on November 26, 1997, in Criminal Case Nos. 3618-D and 3619-D finding accused-appellant Loreto Medenilla y Doria guilty beyond reasonable doubt of violating Sections 15 and 16 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. 1 Accused-appellant was charged in Criminal Case No. 3618-D for violating Section 15, 2 Article III of RA. No. 6425. The information reads as follows: That on or about the 16th day of April, 1996 in the City of Mandaluyong, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any regulated drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to another 5.08 grams of white crystalline substance positive to the test for methamphetamine hydrochloride (shabu) which is regulated drug, in violation of the above cited law. 3 Accused-appellant was as also charged in Criminal Case No. 3619-D for violating Section 16, 4 Article III of R.A No. 6425 with an information which reads as follows: That on or about the 16th day of April, 1996 in the City of Mandaluyong, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any regulated drug, did then and there willfully, unlawfully and knowingly have in his possession and/or

(sic) under his custody and control four (4) transparent plastic bags containing white crystalline substance with a total weight of 200.45 grams, which were found positive to the test for methamphetamine hydrochloride (shabu) which is regulated drug, in violation of the above cited law. 5 Arraigned on June 25, 1996, accused-appellant pleaded not guilty to both charges. 6 Joint trial ensued thereafter. The prosecution's version, as gathered from the testimonies of SPO2 Bonifacio Cabral, SPO1 Neowille De Castro and P/Sr. Insp. Julita T. De Villa, is as follows: On April 14, 1996, a confidential informant arrived at the office of the Narcotics Command (NARCOM) in Camp Crame and reported to SPO2 Bonifacio Cabral that there is a certain person engaged in illegal drug pushing activities in Caloocan, Malabon and Mandaluyong. SPO2 Cabral reported the matter to his superior, Police Senior Inspector Manzanas. 7 Accordingly, Sr. Insp. Manzanas directed SPO2 Cabral to confirm the veracity of the report. Thus, SPO2 Cabral requested the confidential informant to contact the suspected drug pusher to introduce him as a possible buyer 8 On April 15, 1996, the informant returned to the NARCOM office and told SPO2 Cabral that he had arranged a meeting with the suspected drug pusher. The two then proceeded to the pre-arranged meeting place at a Seven Eleven Store along Boni Avenue, Mandaluyong City. At around 5:30 p.m., accused-appellant arrived on board a Toyota Corolla. 9Without alighting from his car, accused-appellant spoke with the informant. 10 The informant introduced SPO2 Cabral to accused-appellant as a prospective buyer of shabu. Accused-appellant inquired how many grams of shabu he wanted to buy and SPO2 Cabral replied that he needed five (5) grams. The suspect then offered the shabu at the price of One Thousand Pesos (P1,000.00) per gram to which SPO 2 Cabral agreed. 11 Accused-appellant told SPO2 Cabral to return the following day. They agreed that the pick up point would be at the United Coconut Planters Bank (UCPB) Building also along Boni Avenue. Upon their return to Camp Crame, SPO2 Cabral and the informant reported the results of their meeting to Sr. Insp. Manzanas. Based on their information, a buy-bust operation was planned. SPO2 Cabral was designated to act as the poseur-buyer with SPO2 de Castro as his back up. Sr. Insp. Manzanas was assigned to stay in the car and await the signal to be given by SPO2 Cabral, through his pager, before apprehending accused-appellant. At around 3:30 in the early morning of April 16, 1996, the buy-bust team proceeded to the agreed meeting place at the UCPB Building in Boni Avenue. 12 Upon reaching the area, SPO2 Cabral alighted from the car while the other operatives positioned themselves in strategic areas. 13 After thirty (30) minutes, accused-appellant arrived. 14 After talking for a short time with SPO2 Cabral, accused-appellant asked the former if he had the money. 15 SPO2 Cabral showed the bundle of money 16 and accused-appellant told him to wait. When he returned, SPO2 Cabral gave him the money and, in exchange, accused-appellant handed a pack containing a white crystalline substance. 17 As planned, SPO2 Cabral turned on his pager which prompted the backup operatives to close in and apprehended accused-appellant. 18 SPO2 Cabral asked accused-appellant if he could search the latter's car. Accused-appellant acceded to the request and, as a result, SPO2 Cabral found a brown clutch bag at the driver's seat of the car. Inside the clutch bag, they found therein four plastic bags containing a white crystalline substance which they suspected was shabu. 19 Accused-appellant was brought to Camp Crame for booking. SPO2 Cabral and SPO1 de Castro then submitted the substance they confiscated to the PNP Crime Laboratory for examination. 20 They thereafter brought accused-appellant; to the PNP General Hospital for a medical and physical examination. 21 The laboratory report on the white crystalline substance showed that the same tested positive for methamphetamine hydrochloride or shabu 22 and that the contents of the substance sold weighed 5.08 grams while those taken from the bag had a total weight of 200.45 grams. The report reads:

PHYSICAL SCIENCES REPORT NO. D-448-96


CASE: Alleged Viol of RA 6425SUSPECT/S: LORETO MEDENILLA TIME AND DATE RECEIVED:2145H 16 April 1996 REQUESTING PARTY/UNIT:C, SOU-HQS-PNPNARCOM Camp Crame, Quezon City

SPECIMEN SUBMITTED: Exh. "A" One (1) brown "MARUDINI CLUTCH BAG" containing the following specimens: 1.One (1) heat sealed transparent plastic bag marked as Exh. "A-1" with 5.08 grams of white crystalline substance: 2.Four (4) transparent plastic bags marked as Exhs. "A-2" through "A-5" each with white crystalline substance and having a total weight of 200.45 grams. . . . PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug. . . FINDINGS: Qualitative examination conducted on the above-stated specimens gave positive result to the tests for Methamphetamine Hydrochloride, a regulated drug. CONCLUSION: Exhs. "A-l", "A-2" through "A-5" contain methamphetamine hydrochloride, a regulated drug. REMARKS: TIME AND DATE COMPLETED: 0740H 17 April 1996 23 For his defense, accused-appellant presented a different version of the events leading to his arrest. On or about April 12, 1996, accused-appellant rented a car, a Toyota Corolla, from a certain Jess Hipolito. It was to be used by his brother for a trip to Pangasinan. 24 On April 15, 1996, his brother turned over the car to accused-appellant with the instruction to return the car to Jess Hipolito 25 However, before returning the car, accused-appellant decided to use the same for a night out with his friends. Accused-appellant, along with four (4) of his friends, namely, Joy, Tess, Willy and Jong-jong, went to Bakahan in Quezon City for dinner and, thereafter, transferred to Music Box Lounge located in front of the said restaurant. After having some drinks, accused-appellant decided to return the car to Jess Hipolito and just take a taxicab with his friends in going back to their place in Caloocan City 26 They all proceeded to the condominium unit of Jess Hipolito located along Boni Avenue in Mandaluyong City. 27 They reached the place at around 2:30 a.m. 28 Accused-appellant told the guard of the condominium building that he wanted to see Jess Hipolito to return the car he rented. The guard instructed him to park the car in front of UCPB. After doing so, accused-appellant, together with Jong-jong and Joy went up to the unit of Jess Hipolito while their two companions, Willy and Tess, stayed in the lobby. 29 While inside the Unit of Jess Hipolito, accused-appellant was introduced to Alvin. 30 Accused-appellant told Jess Hipolito that he wanted to return the car. However, Jess Hipolito requested accused-appellant to drive Alvin, using the rented car, to Quezon City since the latter was carrying a large amount of money. 31 Accused-appellant acceded to the request of Jess Hipolito. They then all went down and, along with Willy and Tess who were then at the lobby, boarded the vehicle. 32 However, when accused-appellant was about to back out the vehicle, a white car blocked the rear position of the car. 33 The passengers of the white car then stepped out of their vehicle and approached them. One of the passengers of the white car, SPO1 de Castro, asked accused-appellant to roll down his window and, after doing so, SPO2 Cabral introduced himself and his companions as police officers. 34 Accused-appellant then asked: "Bakit po, sir?" 35 In response, one of the police officers said: "May titingnan lang muna kami, baba muna kayo" 36 After alighting from the vehicle, accused-appellant and his companions were frisked. 37 Thereafter, SPO2 Cabral noticed a brown clutch bag being held by Alvin and confiscated the same. SPO2 Cabral then asked accused-appellant if he can search the car. The latter agreed. SPO2 Cabral searched the car for about 15 minutes but found nothing. 38 SPO2 Cabral then opened the brown clutch bag he confiscated from Alvin and found plastic sachets containing a white crystalline substance. The police officers then instructed accused-appellant and his companions to board their vehicle. They were all brought to Camp Crame. 39 When they reached the said camp, they were instructed to alight from the vehicle one by one. The first one to step out of the vehicle and go inside the office was Alvin. After 20 minutes, the two women, Tess and Joy, were

brought inside the office and, after 30 minutes, accused-appellant, along with the two remaining passengers, Willy and Jong-jong, followed. 40

When they were all inside the NARCOM office, their personal circumstances were taken down. Thereafter, Jong-jong, Willy and accused-appellant were separated from the group and placed inside the detention cell. Alvin and the two women were left behind in the office and were later on released. 41 After a few hours, Jong-jong and Willy were brought out of the detention cell while accused-appellant, who was then sleeping, was left in confinement. Jong-jong and Willy were brought into the office and were made to sign a document on a yellow pad, prepared by the police officers. The police officers then cautioned the two that they will be implicated in the case if they interfered. They were then released and accompanied out of Camp Crame by a police officer. 42 Accused-appellant was the only one who remained in detention and was, subsequently, solely charged for the illegal sale and possession of shabu. While in detention, accused-appellant learned that the vehicle he borrowed from Jess Hipolito was owned by a certain Evita Ebora, who was also detained in the Mandaluyong City Jail for a drug-related offense. 43 On November 17, 1997, the trial court found accused-appellant guilty as charged. The dispositive portion of the trial court's decision reads: WHEREFORE, judgment is hereby rendered finding accuse LORETO MEDENILLA y DORIA GUILTY beyond reasonable doubt of violating Sections 15 and 16, in relation to Section 20, of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. Said accused is hereby sentenced to: (a) with respect to Criminal Case No. 3618-D, suffer an indeterminate sentence of a minimum of one (1) year, eight (8) months and twenty (20) days, to a maximum of four (4) years and two (2) months of prision correccional (b) with respect to Criminal Case No. 3619-D, suffer the penalty of reclusion perpetua, and pay a fine in the amount of Two Million Pesos (P2,000,000.00); (c) suffer all the accessories penalties consequent thereto; and (d) pay the costs. The shabu involved in this action is hereby confiscated in favor of the government and ordered to be forwarded to the Dangerous Drugs Board to be disposed of in accordance with law. SO ORDERED. 44 ence, this appeal where accused-appellant raises the following issues: I.Was the accused arrested illegally? II.Was there in fact any buy-bust operation? III.Was the accused accorded his right to due process? 45 Being interrelated, we shall discuss the first and second issues jointly. The defense insists that there was no prior agreement between accused-appellant and SPO2 Cabral for the sale of 5 grams of shabu on April 16, 1996 and that no buy bust operation actually took place. The prosecution's claim that there was a buy-bust operation is, according to the defense, belied by the testimonies of accused-appellant and Wilfredo de Jesus that when the incident took place, accused-appellant was not alone but was accompanied by five (5) other persons. 46 Thus, the defense argues that since there was no buy-bust operation, the arrest of accused-appellant was illegal since the arresting officers were not properly armed with a warrant of arrest. Accused-appellant's argument deserves scant consideration. The prosecution through the testimonies of SPO2 Cabral and SPO1 de Castro adequately established the fact that there was a legally conducted buy-bust operation. Their testimonies clearly showed that their confidential informant reported the drug operations of accused-appellant; that a meeting took place between accused-appellant and SPO2 Cabral where they agreed on the sale of 5 grams of shabu; that the NARCOM operatives planned a buy-bust operation; that the said operation was indeed conducted; and that the same resulted in

the arrest of accused-appellant and the confiscation of 5 plastic bags containing a white crystalline substance. In this regard, the testimonies of the police officers were given full credence by the trial COURT, to wit: The prosecution witnesses gave a detailed account of the circumstances surrounding the apprehension of accused Medenilla from the time Cabral was introduced to accused Medenilla up to the buy-bust operation, which culminated in the arrest of accused-Medenilla. This Court can find no inconsistency in their testimonies and, as such, gives full faith and credit thereto. In addition, it is to be noted that no evidence exists to show that the law enforcers failed to perform their duty regularly. Neither was any evidence presented to show that there was improper motive on the part of said witnesses to falsely implicate accused Medenilla. On the contrary, it was established that they did not know accused Medenilla prior to the buy bust operation. . . . 47 The trial court's determination of the credibility of the police officers deserves the highest respect by this Court, considering that the trial court had the direct opportunity to observe their deportment and manner of testifying. 48Furthermore, in the absence of any proof of any intent on the part of the police authorities to falsely impute such a serious crime against accused-appellant, the testimonies of SPO2 Cabral and SPO1 de Castro on the buy-bust operation are deserving of belief due to the presumption of regularity in the performance of official duty accorded to law enforcers. 49 Clearly, accused-appellant's mere denial and concoction of another arrest scenario cannot overcome the positive testimonies of the police officers. Even the supposed corroborative testimony of Wilfredo de Jesus is not credible since the said witness appeared to have been making a mockery of the proceedings before the lower court as noted by the trial judge, to wit: COURT: You better refrain from smiling, I have been warning you. You keep on laughing. Atty. Arias: Your Honor, because he laughs (interrupted) COURT: No, he is laughing. xxx xxx xxx COURT: And keep on laughing. Atty. Arias: He is smiling your Honor. COURT: No, he is not smiling, you can ask him. I do not understand why this guy is keep (sic) on laughing. Atty. Arias: "Binabalaan ka na bata. Huwag kang tatawa huwag kang ngingiti kundi magsalita ka ng maayos at tiyak at tahasan." 50 The testimonies of accused-appellant and Wilfredo de Jesus are not convincing since they are replete with numerous inconsistencies and improbabilities. First, accused-appellant testified that the Bakahan restaurant and the Music Box

lounge they went to on the evening of April 15, 1996 are located in Quezon City. 51 However, Wilfredo de Jesus claimed that the said establishments are located in Mandaluyong. 52 The divergence of their assertions on the location of these establishments goes into the credibility of their claim that they were together with other people and had a night out on the evening of April 15, 1996. Second, accused-appellant claimed that at the time the police officers approached the car prior to the arrest, one of the officers requested them to alight from the vehicle. 53 On the other hand, Wilfredo de Jesus testified that when the police officers approached them, they were forcibly pulled out of their vehicle. 54 Their inconsistency on this matter renders questionable the veracity of the claim of Wilfredo de Jesus that he was present during the arrest of accused-appellant by the NARCOM operatives. Third, their claim that they were at the parking lot of UCPB in Boni Avenue at around 3:00 o'clock in the morning of April 16, 1996 to return the rented vehicle to Jess Hipolito is hard to believe. Human experience dictates that one does not return a rented vehicle to its owner in the early hours of the morning. Business transactions, such as returning a rented car, would ordinarily be transacted during regular hours of work or, perhaps, even earlier but definitely not during the hours of dawn. Fourth, both accused-appellant and Wilfredo de Jesus claimed the improbable scenario that, after they were accosted by the police officers, they were all brought to Camp Crame by riding the same vehicle they rented. If this is believed, then two unlikely situations are made to appear. Either all the six original passengers boarded the vehicle along with a seventh passenger, one of the NARCOM operatives who will ensure that they will proceed to the camp, or only the six original passengers boarded the car to go to Camp Crame and they were just escorted by the police officers who all rode another vehicle. The first situation is implausible since a bantam car, like a Toyota Corolla, can only accommodate five, at most six, fully grown adults but, definitely, not seven. On the other hand, the second situation is contrary to human experience since it will not be in accord with good police operating procedure to allow a group of suspects arrested for a drug-related offense to board a vehicle by themselves and drive the same to the police headquarters. Furthermore, if there were indeed five other passengers on board the vehicle aside from accused-appellant, why were they not charged or, at least, booked in the records of the NARCOM? No proof, not even an allegation, was presented by the defense to reasonably explain why charges were not lodged against these alleged other passengers. The most that accused appellant did was to claim in his appeal brief that the reason why the other suspects were not charged was because the police officers feared that bad luck might befall them if all were charged. Thus, he argues: . . . Due to the belief of karma, the Narcom operatives instead of filing case or cases against all the other occupants of the car together with the accused, the Narcom operatives filed only one case and that is against the accused and in open court denied the presence of the other companions of the accused. 55 Clearly, such type of reasoning and justification shows that accused appellant is already grasping at straws in order that he may be acquitted, through whatever allegation, legal or otherwise, of the crimes he is charged with.

We now come to the third issue raised by accused-appellant that he was denied due process. In this regard, accusedappellant claims that he was deprived of such constitutional right on the following grounds: a)the denial of the court a quo of the motion of the accused through his counsel to have the questionedshabu quantitatively examined; and b)the bias attitude of the presiding judge of the lower court. 56 Accused-appellant admits the veracity of the quantitative test conducted by the PNP Crime Laboratory on the 5 plastic containers of the white crystalline substance which resulted in the issuance of Physical Sciences Report No. D-44896.57 This was stipulated upon by accused-appellant when the forensic chemist of the PNP Crime Laboratory, P/Sr. Insp. Julita T. de Villa, was presented as a witness, to wit: Prosec. Paz: The testimony of the witness is formally offered to prove in both cases, Crim. Cases No. 3618-D and 3619-D, that in Crim. Case 36180D that the white crystalline substance which was sold by the accused Loreto Medenilla to the police operatives was examined by the witness and found positive to the test ofshabu and weighs 5.08 grams and in Crim. Case No. 3619-D to prove that accused Loreto Medenilla y Doria that the four (4) transparent plastic bags found in the

possession of the accused with a total weight of 200.45 grams was found positive to the test of shabu as examined by the witness, your Honor. May we know from counsel for the accused if he is willing to enter into a stipulation? COURT: Atty. Arias, are you willing to enter into stipulation? Atty. Arias: I will admit that the witness is an expert, second, I admit that there was an examination conducted by her and that the result of her examination was reduced into writing. COURT: And it was found positive that the specimen submitted to the crime lab was shabu. Atty. Arias: Yes, your Honor, according to the examination and I will also state for the record that the witness does not know where the specimen came from, how the specimen came into being. xxx xxx xxx Prosec. Paz: May we request counsel for the accused to admit the authenticity and veracity of this document prepared by witness after examining the specimen and the findings as stated in the initial laboratory report. Atty. Arias: As we have stated earlier, your Honor, that the result of her examination was reduced into writing, this is the result of the examination, so be it, your Honor. Prosec. Paz: May we also request that the counsel will admit the weights of the specimens as found by the forensic chemist. Atty. Arias: Everything is written in the document. 58 However, despite this admission, accused-appellant filed a motion to require the forensic chemist to conduct a quantitative as well as a qualitative analysis on the subject methamphetamine hydrochloride or shabu to determine its purity. 59 The trial court, after the prosecution filed its Comment/Opposition 60 to the motion, issued an Order, dated March 17, 1997, denying the motion, to wit: This resolves the motion filed by the accused through his counsel praying that the forensic chemist be required to conduct a qualitative and quantitative analysis on the subject methamphetamine hydrochloride. Records will show (TSN dated October 23, 1996) that the defense counsel, with the express conformity of the accused, had agreed to enter into stipulations or admissions of facts concerning the nature,

quality and quantity of the specimens submitted for chemical analysis. The results of said analysis indicated that said specimens were positive to the test for shabu, and they weighed 5.08 and 200.45 grams, respectively. These results were explicitly admitted by both the accused and his counsel. The only matter that was not admitted was the alleged source of the stuff, it being denied that it was found in and taken from the possession of the accused. The defense counsel who was given the opportunity to cross-examine raised the forensic chemist when she was presented, never raised the issue or even suggested that what was examined could not have been pure shabu, and that if such was the case, it was necessary to determine which part is shabu and which was otherwise. It appears that this idea is merely an after-thought. To the mind of the Court, the attempt to have the specimens examined at this stage of the action, when the prosecution had already terminated the presentation of its evidence and is, in fact, about to make a written formal offer of exhibits, can have no other purpose than to repudiate the findings of the forensic chemist, which had already been previously admitted. This cannot be permitted by the Court as it detracts from the full respect that must be accorded to judicial admissions that have been freely and intelligently made. As correctly observed by the prosecution, said judicial admissions are conclusive and binding upon the accused. The judicial admission that the stuff submitted for analysis, weighing 5.08 and 200.45 grams, respectively, are indeed shabu forecloses any further challenge as to its alleged purity. To speculate at this stage of the action that the stuff is not pure shabu is to virtually repudiate the findings of the forensic chemist, previously admitted without any qualification that the stuff analyzed were indeed such illegal drug. This can no longer be permitted by the Court. WHEREFORE, the instant motion is DENIED for lack of merit. 61 In the instant appeal, accused-appellant insists that he should have been allowed by the trial court to have the shabusubjected to a quantitative test by the PNP Crime Laboratory. He argues that such a test is crucial in view of the nature of the penalties for the violation of the Dangerous Drugs Act of 1972, as amended, which are graduated depending on the amount of regulated or prohibited drugs involved in a case. Accused-appellant claims that a quantitative test will definitely show that the shabu involved herein is not pure and, as such, is less than 200 grams contrary to the assertion of the prosecution that it is 200.45 grams. He anchors this argument on the contention that shabu is never 100% pure but, at most, is only 85% unadulterated. 62 We find that the trial court committed no reversible error in denying the motion. When the defense stipulated with the prosecution that the results of the laboratory examination, as reflected in Physical Sciences Report No. D-48-96, were true and correct, the accused-appellant, in effect, admitted that the substance examined was indeed methamphetamine hydrochloride having a weight of 5.08 grams, for Criminal Case No. 3618-D, and 200.45 grams, for Criminal Case No. 3619-D. Accused-appellant made no qualifications on the veracity of the PNP Crime Laboratory's finding on the total weight of the examined shabu. In fact, no cross-examination was conducted by accused-appellant's counsel on the witness, P/Sr. Insp. Julita de Villa, regarding this matter. Thus, when the defense tried to renege on the previous stipulation by filing a motion requesting for a qualitative test on the shabu involved herein, the trial court was correct in denying the same. Furthermore, in the case of People vs. Barita, 63 we held that there is no need to examine the entirety of the submitted specimen since the sample testing is representative of the whole specimen, we held: We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2,800 grams of marijuana, the whole specimen must be tested considering that Republic Act 7659 impose a penalty dependent on the amount or the quantity of drugs seized or taken. This Court has ruled that a sample taken from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. 64 This ruling was reiterated in People vs. Zheng Bai Hui, 65 thus To recall, appellants sold the NARCOM operatives a substance weighing 992.3 grams. This amount is more than the minimum of 200 grams required by the law to warrant the imposition of either reclusion perpetua or, if there be aggravating circumstances, the death penalty. Appellants however foist the probability that the substance sold could contain additives or adulterants, and not just methamphetamine hydrochloride. Thus, the actual weight of pure shabu could be less than 992.3 grams, thereby possibly reducing the unposable penalty. TcSaHC

The contention has no merit. We rejected a similar argument in People vs. Tang Wai Lan: Accused-appellant then argues that the tests were not done for the entire amount of drugs allegedly found inside the bags. It is suggested that since the law, Republic Act No. 7659, imposes a penalty dependent on the amount or quantity of drugs seized or take, then laboratory tests should be undertaken for the entire amount or quantity of drugs seized in order to determine the proper penalty to be imposed. The argument is quaint and even borders on being ridiculous. In the present case, even assuming that the confirmatory tests were conducted on samples taken from only one (1) of the plastic packages, accused-appellant's arguments must still fail. It will be recalled that each of the plastic packages weighed 1.1 kilograms, an amount more than sufficient to justify imposing the penalty under Sec. 14 of Rep. Act. No. 6425 as amended by Rep. Act No. 7659. A sample taken from one (1) of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. Therefore, a positive result for the presence of drugs is indicative that there is 1.1 kilogram of drugs in the plastic package from which the sample was taken. If it is then proved, beyond reasonable doubt, . . . that accused appellant transported into the Philippines the plastic packages from which samples were taken for tests, and found positive as prohibited drugs, then conviction for importing "shabu" is definitely in order.

Thus, if the prosecution proves that the sample is positive for methamphetamine hydrochloride, it can be presumed that the entire substance is shabu. The burden of evidence shifts to the accused who must prove otherwise. Appellants in this case have not presented any evidence to overcome the presumption. It is clear, therefore, that when accused-appellant stipulated that the weight of the examined specimens for Criminal Case Nos. 3618-D and 3619-D totaled 5.08 and 200.45 grams, respectively, he in effect admitted that the said amounts of shabu are pure and unadulterated. Moreover, accused-appellant made no reservations as to his admission on the veracity of the results as reflected in Physical Sciences Report No. D-448-96. His only concern, at that time, was to make it clear that the forensic scientist who examined the confiscated substance was not aware of where the specimen came from. 66 This was in accord with the theory of the defense that it was not accused-appellant but a companion, Alvin, who was in possession of the confiscated substance. Thus, due to the absence of any reservation on the total weight of the shabu examined, accused-appellant can no longer be heard to go back on his previous admission by requesting a quantitative test of the same. Nevertheless, accused-appellant argues that a quantitative test should be allowed in view of an alleged circular issued by this Court sometime in 1996 directing the PNP Crime Laboratory to conduct a qualitative and a quantitative examination on all illegal drugs submitted to the said office in relation to a case. 67 This argument of accused-appellant is totally bereft of any legal basis. This Court never issued any such circular requiring the PNP Crime Laboratory to conduct quantitative and qualitative tests on substances which they examine. It is clear that this argument was resolved to by counsel for the defense in order to mislead the trial court and this Court into acquitting his client. This contemptuous conduct of counsel for the defense will be dealt with appropriately. Accused-appellant also claims that the biased attitude of the trial judge deprived him of due process. In this regard, he cites in his appeal brief a single instance when the judge allegedly revealed his bias, to wit: COURT: Mark it. Q:What happened after the accused handed to you one pack of crystalline substance?

A:Immediately, I switched on our voyager pager which prompted my backup to subdue the suspect and introduce ourselves as Anti Narcotics police, sir. COURT: By the way, did you not give the money to the accused when he handed to you the alleged substance? A:I gave it to him, your Honor. COURT: So the money was already in the possession of the accused when you received the shabu from him. A:Yes, your Honor. 68 We fail to see how this single noted instance of questioning can justify a claim that the trial judge was biased. We have exhaustively examined the transcript of stenographic notes and determined that the trial judge was more than equitable in presiding over the hearings of this case. Moreover, a judge is not prohibited from propounding clarificatory questions on a witness if the purpose of which is to arrive at a proper and just determination of the case. Thus, in Zheng Bai Hui, we said: In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. 69 The sale of less than 200 grams of methamphetamine hydrochloride, a regulated drug, is punishable with a penalty ranging from prision correccional to reclusion perpetual, depending on the quantity. 70 Thus, if the regulated drug weighs less than 66.67 grams, then the penalty is prision correccional, if 66.67 grams or more but less than 133.33 grams then the penalty is prision mayor and if 133.33 grams or more but less than 200 grams then the penalty is reclusion temporal. In Criminal Case No. 3618-D, the amount of shabu involved weighs 5.08 grams, as such the appropriate penalty is prision correccional. There being no aggravating or mitigating circumstances, the penalty shall be imposed in its medium period or from 2 years, 4 months and 1 day to 4 years and 2 months. Applying the Indeterminate Sentence Law, the maximum penalty shall be within the range of prision correccional medium and the minimum penalty shall be within the range of the penalty next lower to that prescribed or, in this case, arresto mayor. It is, therefore, clear from the foregoing that the trial committed an error in imposing an indeterminate sentence of 1 year, 8 months and 20 days, as minimum, to 4 years and 2 months, as maximum, of prision correccional. Accordingly, this must be notified. DACTSH On the other hand, the possession of 200 grams or more of shabu carries with it the penalty of reclusion perpetua to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Since no aggravating circumstance attended the commission of the offense, the trial court, in Criminal Case No. 3619-D, was correct in imposing the penalty of reclusion perpetua with a fine of Two Million Pesos (P2,000,000.00). WHEREFORE, the decision of the Regional Trial Court of Pasig is hereby AFFIRMED WITH MODIFICATIONS. Accusedappellant Loreto Medenilla y Doria is hereby found GUILTY of violating Sections 15 and 16 of Republic Act No. 6425, as amended by Republic Act No. 7659, and hereby sentenced: (a) in Criminal Case No. 3618-D, to suffer an indeterminate

sentence of 6 months of arresto mayor to 4 years and 2 months of prision correccional; and (b) in Criminal Case No. 3619-D, to suffer the penalty of reclusion perpetua and to pay a fine of Two Million Pesos (P2 ,000,000.00). Counsel for the defense, Atty. Marcelino Arias, is hereby ordered to explain within ten (10) days why he should not be cited in contempt for citing an inexistent circular in his pleadings. SO ORDERED.

Davide, Jr., C .J ., Puno, Pardo and Ynares-Santiago, JJ ., concur.


EN BANC [G.R. No. 144464. November 27, 2001.] GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL SERVICE COMMISSION,respondent.

Ponciano Hernandez for petitioners. The Solicitor General for respondent.


SYNOPSIS Petitioners Zenaida Paitim, Municipal Treasurer of Norzagaray, Bulacan and Gilda Cruz were charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service after a fact-finding investigation disclosed that Paitim impersonated Gilda Cruz in the non-professional career civil service examinations conducted on July 30, 1989 in Quezon City. Petitioners denied the charges against them, declared that they were electing a formal investigation on the matter and subsequently moved to dismiss on the ground of denial of due process because the Civil Service Commission (CSC) was the complainant, the prosecutor and the judge, all at the same time. The motion was denied. The CSC, in a resolution dated July 1, 1998, found petitioners guilty as charged and ordered their dismissal from the government service. Petitioners elevated the case to the Court of Appeals via a petition for review which was, however, dismissed. Their subsequent motion for reconsideration was also denied. Hence, this recourse. The Civil Service Commission is vested with the appellate jurisdiction in all administrative cases where the penalty imposed is removal or dismissal from office and where the complaint was filed by a private citizen. This appellate jurisdiction does not contemplate a case where the acts complained of was committed against the Commission itself as when the employee committed irregularity or anomaly in the conduct of its examinations. Factual findings of administrative bodies like the Civil Service Commission, if supported by substantial evidence, are binding on this Court. There is no denial of administrative due process where after being formally charged, respondents submitted their answer and given opportunity to defend themselves. SYLLABUS 1.ADMINISTRATIVE LAW; CIVIL SERVICE COMMISSION; APPELLATE JURISDICTION OVER ALL ADMINISTRATIVE CASES; REFERS TO CASES FILED AGAINST EMPLOYEES IN CONNECTION WITH THEIR DUTIES AND FUNCTIONS; DOES NOT REFER TO IRREGULARITIES OR ANOMALIES CONNECTED TO EXAMINATIONS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE COMMISSION; CASE AT BAR. Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of 1987, the CSC is vested with appellate jurisdiction only in all administrative cases where

the penalty imposed is removal or dismissal from the office and where the complaint was filed by a private citizen against the government employee. Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative cases are filed against erring employees in connection with their duties and functions of the office. This is, however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations were under the direct control and supervision of the Civil Service Commission. The culprits are government employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was dismissal from the office. Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can rightfully take cognizance over any irregularities or anomalies connected to the examinations. 2.REMEDIAL LAW; EVIDENCE; FINDINGS OF ADMINISTRATIVE BODIES SUPPORTED BY SUBSTANTIAL EVIDENCE, BINDING ON SUPREME COURT. The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. 3.ADMINISTRATIVE LAW; ADMINISTRATIVE DUE PROCESS; NOT DENIED WHERE PETITIONERS WERE GIVEN OPPORTUNITY TO BE HEARD. It can not be denied that the petitioners were formally charged after a finding that aprima facie case for dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do not find reversible error with the decision of the Court of Appeals in upholding the CSC Resolution. DEcITS

DECISION

KAPUNAN, J p: Assailed in the instant petition is the decision of the Court of Appeals upholding Resolution No. 981695 of the Civil Service Commission for allegedly being contrary to law and jurisprudence. The facts are as follows: On September 9, 1994, the Chairperson of the Civil Service Commission (CSC), received a letter from a private individual, Carmelita B. Esteban, claiming that, during the examinations for non-professional in the career civil service, given by the Civil Service Commission, on July 30, 1989 in Quezon City, Zenaida C. Paitim, the Municipal Treasurer of Norzagaray, Bulacan, falsely pretending to be the examinee, Gilda Cruz, a co-employee in the said office, took the examinations for the latter. Carmelita Esteban requested the CSC to investigate the matter, appending to said letter, pictures purporting to be those of Gilda Cruz and Zenaida Paitim. On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission, issued a Memorandum to Eliseo Gatchalian, the Director of the Management Information Office of the Commission, requesting the latter to furnish her with the picture seat plan of the room where Gilda G. Cruz was during the said examination, to ascertain the veracity of the lettercomplaint. Eliseo S. Gatchalian did furnish Erlinda Rosas with certified true copies of the picture seat plans of the rooms where Gilda G. Cruz was assigned not only in the 1989 but also in the 1987 and 1988 career service (sub-professional) examinations. On November 8, 1994, Erlinda Rosas thereby wrote a Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated November 8, 1994, declaring that based on the record, she found a prima facie case against Zenaida Paitim and Gilda G. Cruz. On the basis of said memorandum, a fact finding investigation was conducted. On March 31, 1995, a "Formal Charge" for "Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service" signed by Bella Amilhasan, Director IV of the Civil Service Commission Regional Office No. 3 was filed against Gilda Cruz and Zenaida C. Paitim, with the Civil Service Commission, docketed as Administrative Case No. D3-95-052, which reads as follows: FORMAL CHARGE

MESDAMES: This Office has found after a fact finding investigation that a prima facie case exists against you for DISHONESTY, GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE, committed as follows: "That Gilda Cruz applied to take the July 30, 1989 Career Service Subprofessional examination. A verification of our records revealed that the picture of Cruz pasted in the Picture Seat Plan of the said examination held at Room 21 of the Ramon Magsaysay Elementary School, Quezon City, bears no resemblance to the pictures of Cruz as appearing in the picture seat plans of the previous Career Service Subprofessional Examinations which she took last July 26, 1987 and July 31, 1988 respectively. It would appear that the purported picture of Cruz pasted in the Picture Seat Plan of the said July 30, 1989 examination is the picture of a different person. Further verification showed that this picture belongs to a certain Zenaida Paitim, Municipal Treasurer of Norzagaray, Bulacan who apparently took the said examination on behalf of Cruz and on the basis of the application bearing the name and personal circumstances of Cruz." WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in writing and under oath within five (5) days from receipt hereof. To support your Answer, you may submit supporting documents/sworn statements. In your Answer, you should state whether you elect to have a formal investigation or waive your right to said investigations should your Answer be found not satisfactory. You are advised that you are entitled to the assistance of a counsel. By Authority of the Commission: (Sgd.) Bella A. Amilhasan Director IV 1 The petitioners filed their Answer to the charge entering a general denial of the material averments of the "Formal Charge." They also declared that they were electing a formal investigation on the matter. The petitioners subsequently filed a Motion to Dismiss averring that if the investigation will continue, they will be deprived of their right to due process because the Civil Service Commission was the complainant, the Prosecutor and the Judge, all at the same time. On July 17, 1995, Director Bella A. Amilhasan issued an order denying the motion. 2 The subsequent motion for reconsideration of said order was likewise dismissed. Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct the formal administrative investigation of petitioners' case. On November 16, 1995, Dulce J. Cochon issued an "Investigation Report and Recommendation" finding the Petitioners guilty of "Dishonesty" and ordering their dismissal from the government service, the decretal portion of which reads as follows: WHEREFORE, foregoing premises considered, this Office recommends the dismissal from the service with all its accessory penalties of respondents Zenaida Paitim and Gilda Cruz, both employees of the Municipality of Norzagaray, Bulacan for the offenses of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. Furthermore, this Office recommends the filing of criminal charges against them that shall serve as a deterrent to all possible plans of making a mockery to the sanctity of Civil Service Law and Rules as well as the constitutional mandate that 'A public office is a public trust. (Idem. Supra.) 3

The aforesaid "Investigation Report and Recommendation" was then forwarded, to the Civil Service Commission for its consideration and resolution. On July 1, 1998, the Civil Service Commission issued Resolution No. 981695 finding the petitioners guilty of the charges and ordered their dismissal from the government service. The decretal portion reads as follows: WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of Dishonesty. Accordingly, they are imposed the penalty of dismissal from the service with all its accessory penalties. The Civil Service (Subprofessional) Eligibility of Gilda Cruz is also cancelled. Let a copy of this Resolution, as well as other relevant documents, be furnished the Office of the Ombudsman for whatever action it may take under the premises." 4 Petitioners then went up to the Court of Appeals assailing the resolution of the CSC. On November 29, 1999, the Court of Appeals dismissed the petition before it. The motion for reconsideration was, likewise, denied on August 9, 2000. Hence, this petition. In the instant petition, petitioners raised the following assignment of errors: I THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT PETITIONERS' CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT VIOLATED IN ADMINISTRATIVE CASE NO. D395-052 WHERE RESPONDENT COMMISSION ACTED AS THE INVESTIGATOR, THE COMPLAINANT, THE PROSECUTOR, AND THE JUDGE, ALL AT THE SAME TIME, AGAINST PETITIONERS. IN SO DOING, RESPONDENT COMMISSION COMMITTED A MOCKERY OF ADMINISTRATIVE JUSTICE AND THE COURT OF APPEALS SANCTIONED IT. II THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN RULING THAT RESPONDENT COMMISSION HAS ORIGINAL JURISDICTION TO HEAR AND DECIDE A COMPLAINT OR CHARGE WHETHER FILED BY A PRIVATE CITIZEN OR BY THE CIVIL SERVICE COMMISSION ITSELF. THE LAW VESTS IN RESPONDENT COMMISSION ONLY APPELLATE, NOT ORIGINAL, JURISDICTION IN ALL ADMINISTRATIVE CASES AGAINST A PUBLIC OFFICIAL OR EMPLOYEE INVOLVING THE IMPOSITION OF A PENALTY OF REMOVAL OR DISMISSAL FROM OFFICE WHERE THE COMPLAINT THEREFORE WAS NOT FILED BY A PRIVATE CITIZEN AS IN ADMINISTRATIVE CASE NO. D3-95-052 OF RESPONDENT COMMISSION. 5 We find no merit in the petition. There is no question that petitioner Zenaida Paitim, masquerading herself as petitioner Gilda Cruz, took the civil service examinations in her behalf. Gilda Cruz passed the examinations. On the basis of a tip-off that the two public employees were involved in an anomalous act, the CSC conducted an investigation and verified that the two employees were indeed guilty of dishonesty. Thus, in accordance with the CSC law, the petitioners merited the penalty of dismissal. Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of 1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the penalty imposed is removal or dismissal from the office and where the complaint was filed by a private citizen against the government employee. 6 It reads:

SECTION 47.Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or a fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. 7 (Italics supplied.) Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative cases are filed against erring employees in connection with their duties and functions of the office. This is, however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations were under the direct control and supervision of the Civil Service Commission. The culprits are government employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was dismissal from the office. Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can rightfully take cognizance over any irregularities or anomalies connected to the examinations, as it reads: SECTION 28.The Commission shall have original disciplinary jurisdiction over all its officials and employees and over all cases involving civil service examination anomalies or irregularities. Petitioners' contention that they were denied due process of law by the fact that the CSC acted as investigator, complainant, prosecutor and judge, all at the same time against the petitioners is untenable. The CA correctly explained that the CSC is mandated to hear and decide administrative case instituted by it or instituted before it directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1, Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states: (11)Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. Officials and employees who fail to comply with such decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions, orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof; The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. 8 The records clearly disclose that the petitioners were duly investigated by the CSC and found that: AcHCED After a careful examination of the records, the Commission finds respondents guilty as charged. The photograph pasted over the name Gilda Cruz in the Picture Seat Plan (PSP) during the July 30, 1989 Career Service Examination is not that of Cruz but of Paitim. Also, the signature over the name of Gilda Cruz in the said document is totally different from the signature of Gilda Cruz. It should be stressed that as a matter of procedure, the room examiners assigned to supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In cases where the examinee does not look like the person in the picture submitted and attached on the PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 955195, Taguinay, Ma. Theresa)

The facts, therefore, that Paitim's photograph was attached over the name of Gilda Cruz in the PSP of the July 30, 1989 Career Service Examination, shows that it was Paitim who took the examination. In a similar case, the Commission ruled:

"It should be stressed that the registered examinee's act of asking or allowing another person to take the examination in her behalf constitutes that the evidence on record clearly established that another person took the Civil Service Examination for De Guzman, she should be held liable for the said offense." At the outset, it is axiomatic that in the offense of impersonation, two persons are always involved . In the instant case, the offense cannot prosper without the active participation of both Arada and de Leon. Thus, the logical conclusion is that de Leon took the examination for and in behalf of Arada. Consequently, they are both administratively liable. (Arada, Carolina C. and de Leon, Ponciana Anne M.) 9
It can not be denied that the petitioners were formally charged after a finding that a prima facie case for dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do not find reversible error with the decision of the Court of Appeals in upholding the CSC Resolution. WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED.

Davide, Jr., C. J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

SECOND DIVISION [G.R. No. L-49360. December 14, 1979.] FILEMON DAVID, petitioner, vs. HON. GREGORIO U. AQUILIZAN, FELOMENO JUGAR and RICARDO JUGAR, respondents.

Arturo P. Aponesto for petitioner. Dominador Mortera for private respondents.

DECISION

SANTOS, J p: Petition for certiorari with prayer for a writ of preliminary injunction filed November 27, 1978 to set aside the decision dated September 29, 1978 of the Court of Agrarian Relations (CAR), 16th Regional District, Branch II at Cotabato City, presided by Judge Gregorio U. Aquilizan. 1

We resolved on April 10, 1979, finding the verified petition sufficient in form and substance, to require respondents to answer, not to move to dismiss. 2 On June 9, 1979, respondent Judge after an extension of 20 days, filed an answer. 3Private respondents did not answer notwithstanding due and proper notice. 4 The factual and procedural antecedents which gave rise to this petition follow. Earlier or on February 17, 1976, the herein private respondents, Felomeno and Ricardo Jugar, brothers, filed against Felimon C. David, herein petitioner, a "Petition for Reinstatement" in the CAR, 15th Regional District, Branch II, Cotabato City. They alleged, inter alia, that sometime in 1971, they were installed as share tenants by petitioner over separate portions of the latter's landholding situated at Polomolok, South Cotabato, each portion having a seeding capacity of two (2) hectares, more or less, their sharing agreement being 50-50% of the net produce; that the parcels they were cultivating are devoted to the production of corn crops, the produce per hectare being 60 to 70 cavans in corn cobs; that sometime in the middle part of 1973, private respondents were no longer allowed to continue their cultivation of the subject lots as petitioner-landholder prohibited them from doing so and took possession of said lots for no reason at all; that the Department of Agrarian Reform (DAR) Team Office at General Santos intervened for the immediate reinstatement of private respondents to their respective portions, but such intervention was to no avail as petitioner-landholder refused and still refuses to reinstate them, and that because of such unlawful act, private respondents suffered and will continue to suffer damages and litigation expenses. 5 In herein petitioner's answer, as respondent below, he denied that herein private respondents were his tenants. He claimed that " . . . Ricardo David (should be Jugar) who was then the tractor driver of respondent (now petitioner herein) was given additional incentive to work on a one hectare portion of respondent's land which he surrendered after resigning as tractor driver and after he worked with the Dolefil and as a farm tenant of his father; Felomeno Jugar, truly worked with the respondent (herein petitioner) on share basis until the petitioner Felomeno Jugar (now private respondent) sold his working animals and resumed his faith-healing and later worked, as in fact to the present is working, with his father . . ." 6 He further averred that the average harvest per hectare is not only 60 to 70 sacks of corn on cobs, but if properly cultivated the land would easily yield no less than 120 sacks of corn on cobs at 4 cans each sack; that the truth is that private respondents voluntarily surrendered their landholdings as follows: ". . . Ricardo, in September, 1972, after he resigned as tractor driver of respondent know petitioner), due to ill health; and later on as farm tenant of his father; Felomeno Jugar, voluntarily surrendered his landholdings after he sold his working animals, and later, he continued his religious faith healing occupation and as farm tenant of his father." 7 As affirmative defense, petitioner alleged that private respondents lodged their petition with the DAR, now Ministry of Agrarian Reform (MAR), and after a thorough investigation, the Hearing Officer of said Department, Guillermo Tanawit, rendered a Report (DAR ARDO # 11-38-000, Koronadal, South Cotabato) on April 12, 1976 containing the following findings and recommendation, to wit: cdll "There was no dispute that Ricardo was installed on a 1.0 hectare land, so also there was no dispute that Felomeno Jugar was installed on 2.0 hectare land. "The allegation however, that both were 'illegally ejected' is belied by the admission in their position paper termed as 'memorandum' that the landowner ONLY BORROWED their land for a short period to time. Noted with all aspect that Ricardo even employed himself with the DOLE which only but confirm the stand of voluntary surrender by his landlord. Not only that he even worked on his father's land. He claimed that he resigned as a tractor driver because he was sick and then later claimed that he was reinstalled on another 2.0 hectare augmenting his 1.0 hectare into 2.0 hectare as claimed. But the fact remain thereafter he relinquished his rights thereat because of sickness and work on his father's land. "So also with his brother Felomeno Jugar, he claimed that his lot of 2.0 hectare was only borrowed by his landlord the latter part of 1925 because of their (David) debt with the bank, and work with his father. "Taken as a whole, there could not be unlawful ejectment contrary to PD No. 316 dated October 26, 1973, because during that particular time, Ricardo is either working with the Dole, supplemented by his farming with his father and Felomeno Jugar with his laymen (religious) activities supplemented with his farming with his father's land.

"The above foregoing, the undersigned observation (sic), when the conducted this hearing, can not but penned this dictum that there was no unlawful ejectment but indeed petitioners had summarily surrendered their landholdings separately, on their own will and without any duress (unlawful). "Accordingly, for want of merit, the case is hereby dropped from the undersigned roster of legal (mediation) case." 8 (Emphasis supplied.) On June 29, 1978, after the issues were joined, the respondent Judge issued an order directing the Department (now Ministry) of Agrarian Reform ". . . to cover the land in area under operation Land Transfer (sic) . . ." This order is worded as follows. "When CAR Case No. 43-South Cot. '76 was called, plaintiffs and counsel appeared as well as the defendant and counsels. "In view of the recent ruling of the Court of Appeals with respect to land devoted primarily to rice and/or corn and as of October 21, 1972, said land is automatically covered by operation Land Transfer. "WHEREFORE, in view of the revelation gathered in open court, the Department of Agrarian Reform is hereby directed to cover the land in area under operation Land Transfer." 9 Three months later, or on September 29, 1979, respondent Judge without conducting any hearing rendered judgment for private respondents and against herein petitioner finding that ". . . plaintiffs Ricardo and Felomeno, both surnamed Jugar (now private respondents) were tenants of defendant Filemon C. David (petitioner herein) at the time PD 27 was promulgated on October 21, 1972," 10 and thereafter declared them "owners" thereof. Thus "WHEREFORE, premises considered judgment is rendered: 1.Plaintiffs (private respondents herein) are hereby 'deemed owners' of the land they were cultivating when P.D. 27 was decreed; 2.The Ministry of Agrarian Reform is hereby directed to cover the land point of controversy under Operation Land Transfer; 3.Directing the provincial Commander, Philippine Constabulary of South Cotabato to install peacefully plaintiffs to the land covered by operations Land Transfer after the Ministry of Agrarian Reform shall have identified and sketched them, in conformity with the DND/DAR Memorandum Agreement of September 18, 1975; 4.Let a copy of this Decision be furnished the Hon. Secretary, Ministry of Agrarian Reform for his guidance and easy reference for similar cases. "No pronouncement as to cost or damages." 11 On the bases of the foregoing factual and procedural antecedents, petitioners seek to annul and set aside the aforesaid order and decision of respondent Judge Aquilizan on the grounds that; (a) he was denied due process of law; (b) the respondent Judge has no jurisdiction over the instant case, jurisdiction being legally lodged with the Ministry of Agrarian Reform; (c) assuming respondent Judge has jurisdiction thereof, the order of June 29, 1978 has already become final and no new decision novating the same may be rendered; and (d) the findings of facts, arrived at without hearing, are contrary to the evidence (sic). 12 In his Answer, respondent Judge Aquilizan did not deny the lack of hearings alleged in the petition, but interposed the defense that the subject decision has already become ". . . final and executory after the lapse of the period for the perfection of an appeal . . ." and ". . . there is no showing that an appeal was brought to the Appellate Court in accordance with the provisions of PD 946 and the Uniform Rules of Procedure of the Court of Agrarian Relations." 13That instead, the respondent (should be petitioner) filed the instant "Certiorari with Preliminary Injunction" to review the "Decisions of the Honorable Court of Agrarian Relations dated September 29, 1978", and ". . . that Certiorari cannot be substituted for an appeal . . ." 14

On June 22, 1979, We considered the case submitted for decision. This petition is quite obviously invested with merit. In the light of the foregoing factual and procedural milieu and since, admittedly, respondent judge did not conduct any hearing in the case prior to issuance of the challenged decision, the ineluctible conclusion is that the challenged decision is null and void for want of due process. The following requisites, as set forth in a leading case before the 1935 Constitution took effect, must concur for procedural due process in civil cases: "(1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing." 15 Thus, it is well-settled rule that "no one shall be personally bound until he has had a day in court", by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is a judicial usurpation and oppression, and can never be upheld where justice is justly administered. (Ong Su Han vs. Gutierrez David, 76 Phil. 546, etc.; Moran Comments on the Rules of Court, Vol. I, 1957 ed., p. 476). And it has been held that a final and executory judgment may be set aside with a view to the renewal of the litigation when the judgment is void for lack of due process of law. (Moran, Comments on the Rules of Court, supra, p, 523; Banco Espaol-Filipino vs. Palanca, 37 Phil. 921). 16 Being null and void from its inception, the decision sought to be set aside does not exist in the eyes of the law because it is "as though it had not been done." 17 In legal contemplation, it is no judgment at all. 18 "By it, no rights are divested. From it, no rights . Can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. . . . " 19It may be attacked directly or collaterally, and the action therefor may be brought even after the time for appeal or review has lapsed. The judgment is vulnerable to attack even when no appeal has been taken. 20 Hence, such judgment does not become final in the sense of depriving a party of his right to question its validity. 21

WHEREFORE, petition is GRANTED and the challenged order and decision are hereby SET ASIDE. Respondent judge is hereby directed to conduct appropriate proceedings in the case. This decision is immediately executory. No costs. SO ORDERED. Barredo (Chairman), Antonio, Aquino, Concepcion, Jr. and Abad Santos, JJ., concur. EN BANC [G.R. No. 104961. October 7, 1994.] CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

DECISION

BELLOSILLO, J p: PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases. cdrep The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces

during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6 Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Secs. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. LibLex

However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14 COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15 Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16 As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that thewarrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search . 18 Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was not mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search

was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27 In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the chance to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 InGo v. Court of Appeals, 33 we held that

While the right to preliminary investigation is statutory rather than constitutional in its fundamental, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. cdll Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in an proceeding against petitioner. Consequently, COMELEC Resolution No. 920829 dated 6 April 1992 being violative of the Constitution is SET ASIDE. The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave.

EN BANC [G.R. No. L-59329. July 19, 1985.] EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents.

RESOLUTION

GUTIERREZ, JR., J p: This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security.

The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. It alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. LLjur The petitioner also raised the issue of freedom of speech. It appears from the records that the respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's shift towards what it stated was the coverage of public events and the airing of programs geared towards public affairs. On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the issues raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to withdraw or dismiss the petition. The petitioner alleged: "1.Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting station in favor of Manuel B. Pastrana as well as its rights and interest in the radio station DYRE in Cebu including its right to operate and its equipment; "2.Respondent National Telecommunications Commission has expressed its willingness to grant to the said new owner Manuel B. Pastrana the requisite license and franchise to operate the said radio station and to approve the sale of the radio transmitter of said station DYRE; "3.In view of the foregoing, petitioner has no longer any interest in said case, and the new owner, Manuel B. Pastrana is likewise not interested in pursuing the case any further." The case, therefore, has become moot and academic. However, for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions, the Court issues the following guidelines; (1)The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed or its operations curtailed. 1 (2)It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849). prcd (3)All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent. In his Constitution of the Philippines(2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test (Primicias v. Fugoso [80 Phil. 711, American Bible Society v. City of Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and present danger test was applied in J.B.L Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA 553]. (4)The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens. Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. cdll Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and reject the utterance. (5)The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6)The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. cdrep "The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted." (7)Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss the petition is hereby GRANTED. SO ORDERED. Melencio-Herrera, Plana, Escolin, Relova, Cuevas and Alampay, JJ., concur.

Fernando, C.J., concurs and submits a brief statement. Teehankee, J., concurs in a separate opinion. Makasiar, J., I concur only in the dispositive portion - for dismissal as moot and academic. Aquino, J., no part. Concepcion, Jr., J., for dismissal being moot and academic. De la Fuente, J., In the dismissal, as prayed for by petitioner per its motion to dismiss. Separate Opinions FERNANDO, C.J., concurring: I concur in the ponencia of Justice Gutierrez, Jr., notable for its reiteration of the clear and present danger principle as the standard of limitation on free speech and press, as decided by a unanimous court in J.B.L. Reyes v. Bagatsing. 1 As may be gleaned from the voting of the Justices, the majority favors the view that even if a case were moot and academic, a statement of the governing principle is appropriate in the resolution of dismissal for the guidance not only of the parties but of others similarly situated. There are three Justices, however, Makasiar, Concepcion, Jr. and de la Fuente, who would strictly adhere to the concept that the case being moot and academic, the appropriate disposition is that of simply dismissing the action. That is to abide by the teaching of orthodox learning. The Philippines, however, has deviated from such a strict view. Nor is this approach of recent vintage. As early as Alejandrino v. Quezon 2 decided in 1924, this Court, notwithstanding the absence of jurisdiction, expressed through Justice Malcolm what principle of law should govern. Similarly in Osmea, Jr. v. Pendatun, 3 notwithstanding well-founded doubts as to jurisdiction and a finding that the case should be dismissed for being moot and academic, this Court, through the then Justice, later Chief Justice Bengzon, passed upon the legal question raised. In that sense, the Philippines has followed an approach distinct from that of the United States, notwithstanding the influence of American Constitutional law on our legal system.

Also let me state for the record that the original opinion prepared by Justice Gutierrez, Jr. could not have been released in April after the petitioner on March 25, 1985 "filed a motion to withdraw or dismiss the petition." After that date, some members of the Court wanted the matter discussed anew as to its appropriate disposition. That is the explanation why such an opinion was never sent to the Office of the Chief Justice. Nor is it to be forgotten that even if a decision signed by all the other members were thus submitted, the practice traditionally followed is for whoever is Chief Justice to take a few days for the expression of his views if minded to do so. TEEHANKEE, J., concurring:

Prefatory Statement:As stated in the resolution penned by Mr. Justice Gutierrez, the release in early April of this year of

the Court's decision declaring null and void respondent commission's challenged summary order for closure of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself") and granting the petition for issuance of a writ of mandatory injunction for the reopening of the station, was overtaken by petitioner's "suddenly filed" motion to withdraw or dismiss the petition. Initially, Mr. Justice Gutierrez was for applying the Salonga formula and releasing nevertheless his sixteen-page extended opinion and decision on the merits. He was of the view, fully shared by me, that "(T)he need for guiding principles on constitutionalism is particularly keen in critical times and in periods of transition. There is then a tendency to be impulsive in the exercise of power. The use of illegal shortcuts and the breakdown of traditional restraints and discipline, unfortunately, is most pronounced in troubled times. It becomes necessary for the Court to emphasize the importance of adherence to the mandates of the Constitution. The efforts, no matter how well meaning, to quell a rebellion or to stave off economic disaster cannot succeed if they transgress basic rights and, therefore, alienate our people." But since such approach did not gain the concurrence of the majority, he has replaced his original ponenciawith the abbreviated

Resolution (of a little over four pages) now released, which carries the required majority and issues guidelines "for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions." While withdrawal of the petition for loss of interest on petitioner's part may be granted, still the Court should unequivocally set forth the guiding and controlling precepts or doctrines in pursuance of its symbolic function of educating bench and bar as in Salonga on the protection and preservation of basic constitutional rights. As stated in my separate concurring opinion, infra, public respondents' summary closure of petitioner's radio station failed to observe the special protection given to all forms of media by the due process and freedom of press and media clauses of the Constitution, as well as the basic clear and present danger test. As stated by the now Chief Justice in De la Camara vs. Enage, the fact that the case has become moot "should not preclude this Tribunal from setting forth in language clear and unmistakable . . . for the guidance of lower court judges [and other public officers] the controlling and authoritative doctrines that should be observed," so that full respect may be accorded to basic constitutional rights. My separate concurring opinion which follows hereinafter was prepared and scheduled for promulgation on or about April 9, 1985 upon its return on said date to the ponente, Mr. Justice Gutierrez, for transmittal to the Office of the Chief Justice for the purpose. But this was overtaken by the filing of petitioner's motion for withdrawal or dismissal of the petition. Hence, my said concurring opinion should be read in such time context (in the same manner as in the 1974 martial law cases of Aquino, Jr. and Diokno vs. Enrile, 59 SCRA 183, 309, September 17, 1974, wherein the promulgation of the decision and separate opinions originally schedule for September 12, 1974 was deferred to the following week with the intervening release from detention of Senator Jose W. Diokno). xxx xxx xxx The main opinion reaffirms in language unmistakable that broadcast media (radio and television) while subject to government licensing (for allocation of the use of airwaves and frequencies) and regulation (considering their pervasive presence and instant impact) are equally protected by the preferred freedoms of speech and of the press and by the rudimentary requirements of due process against arbitrary deprivation of life, liberty and property; that the basic standard for restricting or punishing the exercise of these preferred freedoms is the clear and present danger test danger of a serious and imminent evil sought to be prevented; that the summary closure in October, 1980 of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself") violated its constitutional rights and must therefore be declared null and void, and consequently, the writ of mandatory injunction for the reopening of the station, as prayed for, must issue. Congratulations are due the ponente Justice Hugo Gutierrez, Jr. who secured the Court's near-unanimous concurrence in the recent case of Salonga vs. Pao 1 which went back to the fundamentals and stressed, in discharge of the Court's "symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees" that "(I)nfinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists," that ". . . if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate;" that "freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive economic or other liberties," that "this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public issues should be uninhibited, robust, and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action;" that "political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan to overthrow the government through illegal means; " that "respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the

circumstances;" and that "judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so." The same ponente has now likewise obtained the Court's near-unanimous approval of the decision at bar, 2 which restates basic and established constitutional principles under the Rule of Law that public officials do not possess absolute power to summarily close down a broadcasting station nor to arbitrarily deny its application for renewal of license; that their broad and peremptory regulatory powers "must be exercised with punctilious regard for the due process clause" which in the words of the Chief Justice signifies "freedom from arbitrariness [and] is the embodiment of the sporting idea of fair play;" 3 that radio and television which "would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances" deserve the special protection of the preferred right of free press and speech; that comment on and criticism of public officials in the conduct of public aff