Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 7081 September 7, 1912
THE UNITED STATES, plaintiff-appellee,
vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.
JOHNSON, J .:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint,
in the city of Manila, Philippine Islands, the said Tan Teng did willfully,
unlawfully and criminally, and employing force, lie and have carnal
intercourse with a certain Oliva Pacomio, a girl 7 years of age.
After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the
defendant guilty of the offense ofabusos deshonestos, as defined and punished under
article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4
years 6 months and 11 days of prision correccional, and to pay the costs.
From that sentence the defendant appealed and made the following assignments of
error in this court:
I. The lower court erred in admitting the testimony of the physicians about
having taken a certain substance from the body of the accused while he was
confined in jail and regarding the chemical analysis made of the substance to
demonstrate the physical condition of the accused with reference to a
venereal disease.
II. The lower court erred in holding that the complainant was suffering from a
venereal disease produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal
disease.
IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio,
a girl seven years of age, was, on the 15th day of September , 1910, staying in the
house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day
a number of Chinamen were gambling had been in the habit of visiting the house of
the sister of the offended party; that Oliva Pacomio, on the day in question, after
having taken a bath, returned to her room; that the defendant followed her into her
room and asked her for some face powder, which she gave him; that after using some
of the face powder upon his private parts he threw the said Oliva upon the floor,
placing his private parts upon hers, and remained in that position for some little time.
Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that
the latter was suffering from a venereal disease known as gonorrhea. It was at the
time of this discovery that Oliva related to her sister what happened upon the morning
of the 15th of September. The sister at once put on foot an investigation to find the
Chinaman. A number of Chinamen were collected together. Oliva was called upon to
identify the one who had abused her. The defendant was not present at first. later he
arrived and Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and
stripped of his clothing and examined. The policeman who examined the defendant
swore from the venereal disease known as gonorrhea. The policeman took a portion
of the substance emitting from the body of the defendant and turned it over to the
Bureau of Science for the purpose of having a scientific analysis made of the same.
The result of the examination showed that the defendant was suffering from
gonorrhea.
During the trial the defendant objected strongly to the admissibility of the testimony of
Oliva, on the ground that because of her tender years her testimony should not be
given credit. The lower court, after carefully examining her with reference to her ability
to understand the nature of an oath, held that she had sufficient intelligence and
discernment to justify the court in accepting her testimony with full faith and credit.
With the conclusion of the lower court, after reading her declaration, we fully concur.
The defense in the lower court attempted to show that the venereal disease of
gonorrhea might be communicated in ways other than by contact such as is described
in the present case, and called medical witnesses for the purpose of supporting the
contention. Judge Lobingier, in discussing that question said:
We shall not pursue the refinement of speculation as to whether or not this
disease might, in exceptional cases, arise from other carnal contact. The
medical experts, as well as the books, agree that in ordinary cases it arises
from that cause, and if this was an exceptional one, we think it was
incumbent upon the defense to bring it within the exception.
The offended party testified that the defendant had rested his private parts upon hers
for some moments. The defendant was found to be suffering from gonorrhea. The
medical experts who testified agreed that this disease could have been communicated
from him to her by the contact described. Believing as we do the story told by Oliva,
we are forced to the conclusion that the disease with which Oliva was suffering was
the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva
constructed said obnoxious disease from the defendant is not necessary to show that
he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.
The defendant attempted to prove in the lower court that the prosecution was brought
for the purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that
the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of
P60. It seems impossible to believe that the sister, after having become convinced
that Oliva had been outraged in the manner described above, would consider for a
moment a settlement for the paltry sum of P60. Honest women do not consent to the
violation of their bodies nor those of their near relatives, for the filthy consideration of
mere money.
In the court below the defendant contended that the result of the scientific examination
made by the Bureau of Science of the substance taken from his body, at or about the
time he was arrested, was not admissible in evidence as proof of the fact that he was
suffering from gonorrhea. That to admit such evidence was to compel the defendant to
testify against himself. Judge Lobingier, in discussing that question in his sentence,
said:
The accused was not compelled to make any admissions or answer any
questions, and the mere fact that an object found on his person was
examined: seems no more to infringe the rule invoked, than would the
introduction in evidence of stolen property taken from the person of a thief.
The substance was taken from the body of the defendant without his objection, the
examination was made by competent medical authority and the result showed that the
defendant was suffering from said disease. As was suggested by Judge Lobingier,
had the defendant been found with stolen property upon his person, there certainly
could have been no question had the stolen property been taken for the purpose of
using the same as evidence against him. So also if the clothing which he wore, by
reason of blood stains or otherwise, had furnished evidence of the commission of a
crime, there certainly could have been no objection to taking such for the purpose of
using the same as proof. No one would think of even suggesting that stolen property
and the clothing in the case indicated, taken from the defendant, could not be used
against him as evidence, without violating the rule that a person shall not be required
to give testimony against himself.
The question presented by the defendant below and repeated in his first assignment
of error is not a new question, either to the courts or authors. In the case of Holt vs.
U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question,
said:
But the prohibition of compelling a man in a criminal court to be a witness
against himself, is a prohibition of the use of physical or moral compulsion, to
extort communications from him, not an exclusion of his body as evidence,
when it may be material. The objection, in principle, would forbid a jury
(court) to look at a person and compare his features with a photograph in
proof. Moreover we are not considering how far a court would go in
compelling a man to exhibit himself, for when he is exhibited, whether
voluntarily or by order, even if the order goes too far, the evidence if material,
is competent.
The question which we are discussing was also discussed by the supreme court of the
State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that
case the court said, speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused
was confined, to testify to wounds observed by him on the back of the hands
of the accused, although he also testified that he had the accused removed
to a room in another part of the jail and divested of his clothing. The
observation made by the witness of the wounds on the hands and testified to
by him, was in no sense a compelling of the accused to be a witness against
himself. If the removal of the clothes had been forcible and the wounds had
been thus exposed, it seems that the evidence of their character and
appearance would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon
the wall of the house where the crime was committed, for the purpose of ascertaining
whether or not his hand would have produced the bloody print. The court said, in
discussing that question:
It was not erroneous to permit evidence of the coincidence between the hand
of the accused and the bloody prints of a hand upon the wall of the house
where the crime was committed, the hand of the accused having been placed
thereon at the request of persons who were with him in the house.
It may be added that a section of the wall containing the blood prints was produced
before the jury and the testimony of such comparison was like that held to be proper in
another case decided by the supreme court of New Jersey in the case of Johnson vs.
State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of the
shoes to be made in the sand before the jury, and the witnesses who had observed
shoe prints in the sand at the place of the commission of the crime were permitted to
compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.
To admit the doctrine contended for by the appellant might exclude the testimony of a
physician or a medical expert who had been appointed to make observations of a
person who plead insanity as a defense, where such medical testimony was against
necessarily use the person of the defendant for the purpose of making such
examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by the
appellants would also prevent the courts from making an examination of the body of
the defendant where serious personal injuries were alleged to have been received by
him. The right of the courts in such cases to require an exhibit of the injured parts of
the body has been established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be
compelled to be a witness against himself, is simply a prohibition against legal process
to extract from the defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us,
said:
If, in other words, it (the rule) created inviolability not only for his [physical
control] in whatever form exercised, then it would be possible for a guilty
person to shut himself up in his house, with all the tools and indicia of his
crime, and defy the authority of the law to employ in evidence anything that
might be obtained by forcibly overthrowing his possession and compelling the
surrender of the evidential articles a clear reductio ad absurdum. In other
words, it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion. (4 Wigmore, sec. 2263.)
The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral
examination of prisoners before trial. or upon trial, for the purpose of extorting
unwilling confessions or declarations implicating them in the commission of a crime.
(People vs. Gardner, 144 N. Y., 119.)
The doctrine contended for by appellant would prohibit courts from looking at the fact
of a defendant even, for the purpose of disclosing his identity. Such an application of
the prohibition under discussion certainly could not be permitted. Such an inspection
of the bodily features by the court or by witnesses, can not violate the privilege
granted under the Philippine Bill, because it does not call upon the accused as a
witness it does not call upon the defendant for his testimonial responsibility. Mr.
Wigmore says that evidence obtained in this way from the accused, is not testimony
but his body his body itself.
As was said by Judge Lobingier:
The accused was not compelled to make any admission or answer any
questions, and the mere fact that an object found upon his body was
examined seems no more to infringe the rule invoked than would the
introduction of stolen property taken from the person of a thief.
The doctrine contended for by the appellant would also prohibit the sanitary
department of the Government from examining the body of persons who are supposed
to have some contagious disease.
We believe that the evidence clearly shows that the defendant was suffering from the
venereal disease, as above stated, and that through his brutal conduct said disease
was communicated to Oliva Pacomio. In a case like the present it is always difficult to
secure positive and direct proof. Such crimes as the present are generally proved by
circumstantial evidence. In cases of rape the courts of law require corroborative proof,
for the reason that such crimes are generally committed in secret. In the present case,
taking into account the number and credibility of the witnesses, their interest and
attitude on the witness stand, their manner of testifying and the general circumstances
surrounding the witnesses, including the fact that both parties were found to be
suffering from a common disease, we are of the opinion that the defendant did, on or
about the 15th of September, 1910, have such relations as above described with the
said Oliva Pacomio, which under the provisions of article 439 of the Penal Code
makes him guilty of the crime of "abusos deshonestos," and taking into consideration
the fact that the crime which the defendant committed was done in the house where
Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law
should be imposed. The maximum penalty provided for by law is six years of prision
correccional. Therefore let a judgment be entered modifying the sentence of the lower
court and sentencing the defendant to be imprisoned for a period of six years
of prision correccional, and to pay the costs. So ordered.
Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur.















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25018 May 26, 1969
ARSENIO PASCUAL, JR., petitioner-appellee,
vs.
BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR
GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.
Conrado B. Enriquez for petitioner-appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A.
Torres and Solicitor Pedro A. Ramirez for respondent-appellant.
Bausa, Ampil and Suarez for intervenors-appellants.
FERNANDO, J .:
The broad, all-embracing sweep of the self-incrimination clause,
1
whenever
appropriately invoked, has been accorded due recognition by this Court ever since the
adoption of the Constitution.
2
Bermudez v. Castillo,
3
decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order that the
constitutional provision under consideration may prove to be a real protection and not
a dead letter, it must be given a liberal and broad interpretation favorable to the
person invoking it." As phrased by Justice Laurel in his concurring opinion: "The
provision, as doubtless it was designed, would be construed with the utmost liberality
in favor of the right of the individual intended to be served."
4

Even more relevant, considering the precise point at issue, is the recent case of Cabal
v. Kapunan,
5
where it was held that a respondent in an administrative proceeding
under the Anti-Graft Law
6
cannot be required to take the witness stand at the instance
of the complainant. So it must be in this case, where petitioner was sustained by the
lower court in his plea that he could not be compelled to be the first witness of the
complainants, he being the party proceeded against in an administrative charge for
malpractice. That was a correct decision; we affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of
First Instance of Manila an action for prohibition with prayer for preliminary injunction
against the Board of Medical Examiners, now respondent-appellant. It was alleged
therein that at the initial hearing of an administrative case
7
for alleged immorality,
counsel for complainants announced that he would present as his first witness herein
petitioner-appellee, who was the respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record his objection, relying on the
constitutional right to be exempt from being a witness against himself. Respondent-
appellant, the Board of Examiners, took note of such a plea, at the same time stating
that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be
called upon to testify as such witness, unless in the meantime he could secure a
restraining order from a competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him to take the witness
stand, the Board of Examiners was guilty, at the very least, of grave abuse of
discretion for failure to respect the constitutional right against self-incrimination, the
administrative proceeding against him, which could result in forfeiture or loss of a
privilege, being quasi-criminal in character. With his assertion that he was entitled to
the relief demanded consisting of perpetually restraining the respondent Board from
compelling him to testify as witness for his adversary and his readiness or his
willingness to put a bond, he prayed for a writ of preliminary injunction and after a
hearing or trial, for a writ of prohibition.
On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue
against the respondent Board commanding it to refrain from hearing or further
proceeding with such an administrative case, to await the judicial disposition of the
matter upon petitioner-appellee posting a bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts stressed that it could call
petitioner-appellee to the witness stand and interrogate him, the right against self-
incrimination being available only when a question calling for an incriminating answer
is asked of a witness. It further elaborated the matter in the affirmative defenses
interposed, stating that petitioner-appellee's remedy is to object once he is in the
witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary
course of law," precluding the issuance of the relief sought. Respondent Board,
therefore, denied that it acted with grave abuse of discretion.
There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton,
the complainants in the administrative case for malpractice against petitioner-appellee,
asking that they be allowed to file an answer as intervenors. Such a motion was
granted and an answer in intervention was duly filed by them on March 23, 1965
sustaining the power of respondent Board, which for them is limited to compelling the
witness to take the stand, to be distinguished, in their opinion, from the power to
compel a witness to incriminate himself. They likewise alleged that the right against
self-incrimination cannot be availed of in an administrative hearing.
A decision was rendered by the lower court on August 2, 1965, finding the claim of
petitioner-appellee to be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for the complainant in said
investigation without his consent and against himself." Hence this appeal both by
respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for
the petitioner-appellee.
1. We affirm the lower court decision on appeal as it does manifest fealty to the
principle announced by us in Cabal v. Kapunan.
8
In that proceeding for certiorari and
prohibition to annul an order of Judge Kapunan, it appeared that an administrative
charge for unexplained wealth having been filed against petitioner under the Anti-Graft
Act,
9
the complainant requested the investigating committee that petitioner be ordered
to take the witness stand, which request was granted. Upon petitioner's refusal to be
sworn as such witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he initiated this
proceeding. We found for the petitioner in accordance with the well-settled principle
that "the accused in a criminal case may refuse, not only to answer incriminatory
questions, but, also, to take the witness stand."
It was noted in the opinion penned by the present Chief Justice that while the matter
referred to an a administrative charge of unexplained wealth, with the Anti-Graft Act
authorizing the forfeiture of whatever property a public officer or employee may
acquire, manifestly out proportion to his salary and his other lawful income, there is
clearly the imposition of a penalty. The proceeding for forfeiture while administrative in
character thus possesses a criminal or penal aspect. The case before us is not
dissimilar; petitioner would be similarly disadvantaged. He could suffer not the
forfeiture of property but the revocation of his license as a medical practitioner, for
some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to
an American Supreme Court opinion highly persuasive in character.
10
In the language
of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth
Amendment has been absorbed in the Fourteenth, that it extends its protection to
lawyers as well as to other individuals, and that it should not be watered down by
imposing the dishonor of disbarment and the deprivation of a livelihood as a price for
asserting it." We reiterate that such a principle is equally applicable to a proceeding
that could possibly result in the loss of the privilege to practice the medical profession.
2. The appeal apparently proceeds on the mistaken assumption by respondent Board
and intervenors-appellants that the constitutional guarantee against self-incrimination
should be limited to allowing a witness to object to questions the answers to which
could lead to a penal liability being subsequently incurred. It is true that one aspect of
such a right, to follow the language of another American decision,
11
is the protection
against "any disclosures which the witness may reasonably apprehend could be used
in a criminal prosecution or which could lead to other evidence that might be so used."
If that were all there is then it becomes diluted.lawphi1.et
The constitutional guarantee protects as well the right to silence. As far back as 1905,
we had occasion to declare: "The accused has a perfect right to remain silent and his
silence cannot be used as a presumption of his guilt."
12
Only last year, in Chavez v.
Court of Appeals,
13
speaking through Justice Sanchez, we reaffirmed the doctrine
anew that it is the right of a defendant "to forego testimony, to remain silent, unless he
chooses to take the witness stand with undiluted, unfettered exercise of his own
free genuine will."
Why it should be thus is not difficult to discern. The constitutional guarantee, along
with other rights granted an accused, stands for a belief that while crime should not go
unpunished and that the truth must be revealed, such desirable objectives should not
be accomplished according to means or methods offensive to the high sense of
respect accorded the human personality. More and more in line with the democratic
creed, the deference accorded an individual even those suspected of the most
heinous crimes is given due weight. To quote from Chief Justice Warren, "the
constitutional foundation underlying the privilege is the respect a government ... must
accord to the dignity and integrity of its citizens."
14

It is likewise of interest to note that while earlier decisions stressed the principle of
humanity on which this right is predicated, precluding as it does all resort to force or
compulsion, whether physical or mental, current judicial opinion places equal
emphasis on its identification with the right to privacy. Thus according to Justice
Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to
create a zone of privacy which government may not force to surrender to his
detriment."
15
So also with the observation of the late Judge Frank who spoke of "a
right to a private enclave where he may lead a private life. That right is the hallmark of
our democracy."
16
In the light of the above, it could thus clearly appear that no
possible objection could be legitimately raised against the correctness of the decision
now on appeal. We hold that in an administrative hearing against a medical
practitioner for alleged malpractice, respondent Board of Medical Examiners cannot,
consistently with the self-incrimination clause, compel the person proceeded against
to take the witness stand without his consent.
WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without
pronouncement as to costs.
Reyes, Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.
Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE
JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE
SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ,
TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO
OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO
MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO
ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN
(OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO
OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO
MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO
ACUPIDO, respondents.

CUEVAS, JR., J .:
On August 21, 1983, a crime unparalleled in repercussions and ramifications was
committed inside the premises of the Manila International Airport (MIA) in Pasay City.
Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to
the country after a long-sojourn abroad, was gunned down to death. The
assassination rippled shock-waves throughout the entire country which reverberated
beyond the territorial confines of this Republic. The after-shocks stunned the nation
even more as this ramified to all aspects of Philippine political, economic and social
life.
To determine the facts and circumstances surrounding the killing and to allow a free,
unlimited and exhaustive investigation of all aspects of the tragedy,
1
P.D. 1886 was
promulgated creating an ad hoc Fact Finding Board which later became more
popularly known as the Agrava Board.
2
Pursuant to the powers vested in it by P.D.
1886, the Board conducted public hearings wherein various witnesses appeared and
testified and/or produced documentary and other evidence either in obedience to a
subpoena or in response to an invitation issued by the Board Among the witnesses
who appeared, testified and produced evidence before the Board were the herein
private respondents General Fabian C. Ver, Major General Prospero Olivas,
3
Sgt.
Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt.
Prospero Bona and AIC Aniceto Acupido.
4

UPON termination of the investigation, two (2) reports were submitted to His
Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice
Corazon Juliano Agrava; and another one, jointly authored by the other members of
the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos
and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the
TANODBAYAN for appropriate action. After conducting the necessary preliminary
investigation, the TANODBAYAN
5
filed with the SANDIGANBAYAN two (2)
Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was
docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the
killing of Rolando Galman, who was found dead on the airport tarmac not far from the
prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and one
accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents
pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution
represented by the Office of the petition TANODBAYAN, marked and thereafter
offered as part of its evidence, the individual testimonies of private respondents before
the Agrava Board.
6
Private respondents, through their respective counsel objected to
the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to
Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as
Evidence against him in the above-entitled cases"
7
contending that its admission will
be in derogation of his constitutional right against self-incrimination and violative of the
immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as
evidence for the prosecution. Major Gen. Olivas and the rest of the other private
respondents likewise filed separate motions to exclude their respective individual
testimonies invoking the same ground.
8
Petitioner TANODBAYAN opposed said
motions contending that the immunity relied upon by the private respondents in
support of their motions to exclude their respective testimonies, was not available to
them because of their failure to invoke their right against self-incrimination before the
ad hoc Fact Finding Board.
9
Respondent SANDIGANBAYAN ordered the
TANODBAYAN and the private respondents to submit their respective memorandum
on the issue after which said motions will be considered submitted for resolution.
10

On May 30, 1985, petitioner having no further witnesses to present and having been
required to make its offer of evidence in writing, respondent SANDIGANBAYAN,
without the pending motions for exclusion being resolved, issued a Resolution
directing that by agreement of the parties, the pending motions for exclusion and the
opposition thereto, together with the memorandum in support thereof, as well as the
legal issues and arguments, raised therein are to be considered jointly in the Court's
Resolution on the prosecution's formal offer of exhibits and other documentary
evidences.
11
On June 3, 1985, the prosecution made a written "Formal Offer of
Evidence" which includes, among others, the testimonies of private respondents and
other evidences produced by them before the Board, all of which have been
previously marked in the course of the trial.
12

All the private respondents objected to the prosecution's formal offer of evidence on
the same ground relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed
in these two (2) petitions, admitting all the evidences offered by the prosecution except
the testimonies and/or other evidence produced by the private respondents in view of
the immunity granted by P.D. 1886.
13

Petitioners' motion for the reconsideration of the said Resolution having been
DENIED, they now come before Us by way of certiorari
14
praying for the amendment
and/or setting aside of the challenged Resolution on the ground that it was issued
without jurisdiction and/or with grave abuse of discretion amounting to lack of
jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando
Galman, also filed a separate petition for certiorari
15
on the same ground. Having
arisen from the same factual beginnings and raising practically Identical issues, the
two (2) petitioners were consolidated and will therefore be jointly dealt with and
resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies
given by the eight (8) private respondents who did not invoke their rights against self-
incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner
TANODBAYAN, that said testimonies are admissible against the private respondents,
respectively, because of the latter's failure to invoke before the Agrava Board the
immunity granted by P.D. 1886. Since private respondents did not invoke said
privilege, the immunity did not attach. Petitioners went further by contending that such
failure to claim said constitutional privilege amounts to a waiver thereof.
16
The private
respondents, on the other hand, claim that notwithstanding failure to set up the
privilege against self- incrimination before the Agrava Board, said evidences cannot
be used against them as mandated by Section 5 of the said P.D. 1886. They contend
that without the immunity provided for by the second clause of Section 5, P.D. 1886,
the legal compulsion imposed by the first clause of the same Section would suffer
from constitutional infirmity for being violative of the witness' right against self-
incrimination.
17
Thus, the protagonists are locked in horns on the effect and legal
significance of failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been
previously called upon to rule on issues involving immunity statutes. The relative
novelty of the question coupled with the extraordinary circumstance that had
precipitated the same did nothing to ease the burden of laying down the criteria upon
which this Court will henceforth build future jurisprudence on a heretofore unexplored
area of judicial inquiry. In carrying out this monumental task, however, We shall be
guided, as always, by the constitution and existing laws.
The Agrava Board,
18
came into existence in response to a popular public clamor that
an impartial and independent body, instead of any ordinary police agency, be charged
with the task of conducting the investigation. The then early distortions and
exaggerations, both in foreign and local media, relative to the probable motive behind
the assassination and the person or persons responsible for or involved in the
assassination hastened its creation and heavily contributed to its early formation.
19

Although referred to and designated as a mere Fact Finding Board, the Board is in
truth and in fact, and to all legal intents and purposes, an entity charged, not only with
the function of determining the facts and circumstances surrounding the killing, but
more importantly, the determination of the person or persons criminally responsible
therefor so that they may be brought before the bar of justice. For indeed, what good
will it be to the entire nation and the more than 50 million Filipinos to know the facts
and circumstances of the killing if the culprit or culprits will nevertheless not be dealt
with criminally? This purpose is implicit from Section 12 of the said Presidential
Decree, the pertinent portion of which provides
SECTION 12. The findings of the Board shall be made public.
Should the findings warrant the prosecution of any person, the
Board may initiate the filing of proper complaint with the appropriate
got government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort,
to the ascertainment and/or determination of the culprit or culprits, their consequent
prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees
"any person called to testify before the Board the right to counsel at any stage of the
proceedings."
20
Considering the foregoing environmental settings, it cannot be denied
that in the course of receiving evidence, persons summoned to testify will include not
merely plain witnesses but also those suspected as authors and co-participants in the
tragic killing. And when suspects are summoned and called to testify and/or produce
evidence, the situation is one where the person testifying or producing evidence is
undergoing investigation for the commission of an offense and not merely in order to
shed light on the facts and surrounding circumstances of the assassination, but more
importantly, to determine the character and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects in the
said assassination, all of whom except Generals Ver and Olivas, were detained (under
technical arrest) at the time they were summoned and gave their testimonies before
the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them
the right to remain silent. They were compelled to testify or be witnesses against
themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the
witness stand, testify or produce evidence, under pain of contempt if they failed or
refused to do so.
21
The jeopardy of being placed behind prison bars even before
conviction dangled before their very eyes. Similarly, they cannot invoke the right not to
be a witness against themselves, both of which are sacrosantly enshrined and
protected by our fundamental law.
21
-a Both these constitutional rights (to remain
silent and not to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced evidence as
ordered, they were not immune from prosecution by reason of the testimony given by
them.
Of course, it may be argued is not the right to remain silent available only to a person
undergoing custodial interrogation? We find no categorical statement in the
constitutional provision on the matter which reads:
... Any person under investigation for the commission of an offense
shall have the right to remain and to counsel, and to be informed of
such right. ...
22
(Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of
jurisprudence
23
on this specific portion of the subject provision. In all these cases, it
has been categorically declared that a person detained for the commission of an
offense undergoing investigation has a right to be informed of his right to remain silent,
to counsel, and to an admonition that any and all statements to be given by him may
be used against him. Significantly however, there has been no pronouncement in any
of these cases nor in any other that a person similarly undergoing investigation for the
commission of an offense, if not detained, is not entitled to the constitutional
admonition mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial"
by having it inserted between the words "under" and investigation", as in fact the
sentence opens with the phrase "any person " goes to prove that they did not adopt in
toto the entire fabric of the Miranda doctrine.
24
Neither are we impressed by
petitioners' contention that the use of the word "confession" in the last sentence of
said Section 20, Article 4 connotes the Idea that it applies only to police investigation,
for although the word "confession" is used, the protection covers not only
"confessions" but also "admissions" made in violation of this section. They are
inadmissible against the source of the confession or admission and against third
person.
25

It is true a person in custody undergoing investigation labors under a more formidable
ordeal and graver trying conditions than one who is at liberty while being investigated.
But the common denominator in both which is sought to be avoided is the evil of
extorting from the very mouth of the person undergoing interrogation for the
commission of an offense, the very evidence with which to prosecute and thereafter
convict him. This is the lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the
military contingent that escorted Sen. Aquino while disembarking from the plane that
brought him home to Manila on that fateful day. Being at the scene of the crime as
such, they were among the first line of suspects in the subject assassination. General
Ver on the other hand, being the highest military authority of his co-petitioners labored
under the same suspicion and so with General Olivas, the first designated investigator
of the tragedy, but whom others suspected, felt and believed to have bungled the
case. The papers, especially the foreign media, and rumors from uglywagging
tongues, all point to them as having, in one way or another participated or have
something to do, in the alleged conspiracy that brought about the assassination. Could
there still be any doubt then that their being asked to testify, was to determine whether
they were really conspirators and if so, the extent of their participation in the said
conspiracy? It is too taxing upon one's credulity to believe that private respondents'
being called to the witness stand was merely to elicit from them facts and
circumstances surrounding the tragedy, which was already so abundantly supplied by
other ordinary witnesses who had testified earlier. In fact, the records show that
Generals Ver and Olivas were among the last witnesses called by the Agrava Board.
The subject matter dealt with and the line of questioning as shown by the transcript of
their testimonies before the Agrava Board, indubitably evinced purposes other than
merely eliciting and determining the so-called surrounding facts and circumstances of
the assassination. In the light of the examination reflected by the record, it is not far-
fetched to conclude that they were called to the stand to determine their probable
involvement in the crime being investigated. Yet they have not been informed or at the
very least even warned while so testifying, even at that particular stage of their
testimonies, of their right to remain silent and that any statement given by them may
be used against them. If the investigation was conducted, say by the PC, NBI or by
other police agency, all the herein private respondents could not have been compelled
to give any statement whether incriminatory or exculpatory. Not only that. They are
also entitled to be admonished of their constitutional right to remain silent, to counsel,
and be informed that any and all statements given by them may be used against them.
Did they lose their aforesaid constitutional rights simply because the investigation was
by the Agrava Board and not by any police investigator, officer or agency? True, they
continued testifying. May that be construed as a waiver of their rights to remain silent
and not to be compelled to be a witness against themselves? The answer is yes, if
they have the option to do so. But in the light of the first portion of Section 5 of P.D.
1886 and the awesome contempt power of the Board to punish any refusal to testify or
produce evidence, We are not persuaded that when they testified, they voluntarily
waived their constitutional rights not to be compelled to be a witness against
themselves much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote
the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is moral
coercion 'tending to force testimony from the unwilling lips of the
defendant.
26

Similarly, in the case of Louis J. Lefkowitz v. Russel
27
Turley" citing Garrity vs. New
Jersey" where certain police officers summoned to an inquiry being conducted by the
Attorney General involving the fixing of traffic tickets were asked questions following a
warning that if they did not answer they would be removed from office and that
anything they said might be used against them in any criminal proceeding, and the
questions were answered, the answers given cannot over their objection be later used
in their prosecutions for conspiracy. The United States Supreme Court went further in
holding that:
the protection of the individuals under the Fourteenth Amendment
against coerced statements prohibits use in subsequent
proceedings of statements obtained under threat or removal from
office, and that it extends to all, whether they are policemen or other
members of the body politic. 385 US at 500, 17 L Ed. 562. The
Court also held that in the context of threats of removal from office
the act of responding to interrogation was not voluntary and was not
an effective waiver of the privilege against self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause,
petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not
to be compelled to be a witness against himself" applies only in favor of an accused in
a criminal case. Hence, it may not be invoked by any of the herein private respondents
before the Agrava Board. The Cabal vs. Kapunan
28
doctrine militates very heavily
against this theory. Said case is not a criminal case as its title very clearly indicates. It
is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal
refused to take the stand, to be sworn and to testify upon being called as a witness for
complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court
sustained Cabal's plea that for him to be compelled to testify will be in violation of his
right against self- incrimination. We did not therein state that since he is not an
accused and the case is not a criminal case, Cabal cannot refuse to take the witness
stand and testify, and that he can invoke his right against self-incrimination only when
a question which tends to elicit an answer that will incriminate him is profounded to
him. Clearly then, it is not the character of the suit involved but the nature of the
proceedings that controls. The privilege has consistently been held to extend to all
proceedings sanctioned by law and to all cases in which punishment is sought to be
visited upon a witness, whether a party or not.
29
If in a mere forfeiture case where
only property rights were involved, "the right not to be compelled to be a witness
against himself" is secured in favor of the defendant, then with more reason it cannot
be denied to a person facing investigation before a Fact Finding Board where his life
and liberty, by reason of the statements to be given by him, hang on the balance.
Further enlightenment on the subject can be found in the historical background of this
constitutional provision against self- incrimination. The privilege against self-
incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the
Philippines, the same principle obtains as a direct result of American influence. At first,
the provision in our organic laws were similar to the Constitution of the United States
and was as follows:
That no person shall be ... compelled in a criminal case to be a
witness against himself.
30

As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to
make said provision also applicable to cases other than criminal. Decidedly then, the
right "not to be compelled to testify against himself" applies to the herein private
respondents notwithstanding that the proceedings before the Agrava Board is not, in
its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred
constitutional rights, but also the right to "due process" which is fundamental
fairness.
31
Quoting the highly-respected eminent constitutionalist that once graced
this Court, the former Chief Justice Enrique M. Fernando, due process
... is responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is thus hostile
to any official action marred by lack of reasonableness. Correctly, it
has been Identified as freedom from arbitrariness. It is the
embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice
Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty
"to those strivings for justice and judges the act of officialdom of
whatever branch "in the light of reason drawn from considerations of
fairness that reflect (democratic) traditions of legal and political
thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It
is not a narrow or '"echnical conception with fixed content unrelated
to time, place and circumstances."(Cafeteria Workers v. McElroy
1961, 367 US 1230) Decisions based on such a clause requiring a
'close and perceptive inquiry into fundamental principles of our
society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due
process are not to be treated narrowly or pedantically in slavery to
form or phrases. (Pearson v. McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments,
manifestations and admissions of both counsel, failed to reveal adherence to and
compliance with due process. The manner in which the testimonies were taken from
private respondents fall short of the constitutional standards both under the DUE
PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV.
In the face of such grave constitutional infirmities, the individual testimonies of private
respondents cannot be admitted against them in ally criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence of a grant
of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim
to the availability to private respondents of the immunity provided for in Section 5, P.D.
1886 which issue was squarely raised and extensively discussed in the pleadings and
oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use
immunity"; and the other, which grants what is known as "transactional immunity." The
distinction between the two is as follows: "Use immunity" prohibits use of witness'
compelled testimony and its fruits in any manner in connection with the criminal
prosecution of the witness. On the other hand, "transactional immunity" grants
immunity to the witness from prosecution for an offense to which his compelled
testimony relates."
32
Examining Presidential Decree 1886, more specifically Section 5
thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or
other evidence in obedience to a subpoena issued by the Board on
the ground that his testimony or the evidence required of him may
tend to incriminate him or subject him to penalty or forfeiture; but his
testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing
concerning which he is compelled, after having invoked his privilege
against self-incrimination, to testify or produce evidence, except that
such individual so testifying shall not be exempt from prosecution
and punishment for perjury committed in so testifying, nor shall he
be exempt from demotion or removal from office. (Emphasis
supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It
grants merely immunity from use of any statement given before the Board, but not
immunity from prosecution by reason or on the basis thereof. Merely testifying and/or
producing evidence do not render the witness immuned from prosecution
notwithstanding his invocation of the right against self- incrimination. He is merely
saved from the use against him of such statement and nothing more. Stated otherwise
... he still runs the risk of being prosecuted even if he sets up his right against self-
incrimination. The dictates of fair play, which is the hallmark of due process, demands
that private respondents should have been informed of their rights to remain silent and
warned that any and all statements to be given by them may be used against them.
This, they were denied, under the pretense that they are not entitled to it and that the
Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us
by the petitioners that the right against self-incrimination must be invoked before the
Board in order to prevent use of any given statement against the testifying witness in a
subsequent criminal prosecution. A literal interpretation fashioned upon Us is
repugnant to Article IV, Section 20 of the Constitution, which is the first test of
admissibility. It reads:
No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other
means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible
in evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation
thereof. As herein earlier discussed, this exclusionary rule applies not only to
confessions but also to admissions,
33
whether made by a witness in any proceeding
or by an accused in a criminal proceeding or any person under investigation for the
commission of an offense. Any interpretation of a statute which will give it a meaning
in conflict with the Constitution must be avoided. So much so that if two or more
constructions or interpretations could possibly be resorted to, then that one which will
avoid unconstitutionality must be adopted even though it may be necessary for this
purpose to disregard the more usual and apparent import of the language used.
34
To
save the statute from a declaration of unconstitutionality it must be given a reasonable
construction that will bring it within the fundamental law.
35
Apparent conflict between
two clauses should be harmonized.
36

But a literal application of a requirement of a claim of the privilege against self-
incrimination as a condition sine qua non to the grant of immunity presupposes that
from a layman's point of view, he has the option to refuse to answer questions and
therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal
by imposing sanctions upon its exercise, thus:
SEC. 4. The Board may hold any person in direct or indirect
contempt, and impose appropriate penalties therefor. A person
guilty of .... including ... refusal to be sworn or to answer as a
witness or to subscribe to an affidavit or deposition when lawfully
required to do so may be summarily adjudged in direct contempt by
the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no
choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5.
The absurdity of such application is apparent Sec. 5 requires a claim which it,
however, forecloses under threat of contempt proceedings against anyone who makes
such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886
viewed in the light of the sanctions provided in Section 4,infringes upon the witness'
right against self-incrimination. As a rule, such infringement of the constitutional right
renders inoperative the testimonial compulsion, meaning, the witness cannot be
compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is
offered.
37
Hence, under the oppressive compulsion of P.D. 1886, immunity must in
fact be offered to the witness before he can be required to answer, so as to safeguard
his sacred constitutional right. But in this case, the compulsion has already produced
its desired results the private respondents had all testified without offer of immunity.
Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact
been offered. We hold, therefore, that in view of the potent sanctions imposed on the
refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies
compelled thereby are deemed immunized under Section 5 of the same law. The
applicability of the immunity granted by P.D. 1886 cannot be made to depend on a
claim of the privilege against self-incrimination which the same law practically strips
away from the witness.
With the stand we take on the issue before Us, and considering the temper of the
times, we run the risk of being consigned to unpopularity. Conscious as we are of, but
undaunted by, the frightening consequences that hover before Us, we have strictly
adhered to the Constitution in upholding the rule of law finding solace in the view very
aptly articulated by that well-known civil libertarian and admired defender of human
rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs.
Manalang
38
and we quote:
I am completely conscious of the need for a balancing of the
interests of society with the rights and freedoms of the individuals. I
have advocated the balancing-of-interests rule in an situations
which call for an appraisal of the interplay of conflicting interests of
consequential dimensions. But I reject any proposition that would
blindly uphold the interests of society at the sacrifice of the dignity of
any human being. (Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition passing
upon the guilt or innocence of the herein private respondents an issue which is before
the Sandiganbayan. We are merely resolving a question of law and the
pronouncement herein made applies to all similarly situated, irrespective of one's rank
and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions
without merit, same are DISMISSED. No pronouncement as to costs.
SO ORDERED.
Aquino, J., concurs (as certified by Makasiar, C.J.).
Abad Santos, J., is on leave.




































Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-28025 December 16, 1970
DAVID ACEBEDO Y DALMAN, petitioner,
vs.
HON. MALCOLM G. SARMIENTO, as Judge of the Court of First Instance of
Pampanga and THE PROV. FISCAL OF PAMPANGA, respondents.
Filemon Cajator for petitioner.
Judge Malcolm G. Sarmiento in his own behalf.
Provincial Fiscal Regidor Y. Aglipay for and in his own behalf as respondent.

FERNANDO, J .:
This Court not so long ago reaffirmed the doctrine that where a dismissal of a criminal
prosecution amounts to an acquittal, even if arising from a motion presented by the
accused, the ban on being twice put in jeopardy may be invoked, especially where
such dismissal was predicated on the right to a speedy trial.
1
The specific question
then that this certiorari and prohibition proceeding presents is whether on the
undisputed facts, an order of dismissal given in open court by respondent Judge falls
within the operation of the above principle, precluding its reconsideration later as the
defense of double jeopardy would be available. Here respondent Judge did
reconsider, and his actuation is now assailed as a grave abuse of discretion. As will be
made apparent, petitioner has the law on his side. The writs should be granted.
It was shown that on August 3, 1959, respondent Provincial Fiscal filed in the Court of
First Instance of Pampanga a criminal information for damage to property through
reckless imprudence against petitioner and a certain Chi Chan Tan. As there were no
further proceedings in the meantime, petitioner on May 19, 1965 moved to dismiss the
criminal charge. Respondent Judge was not in agreement as shown by his order of
denial of July 10, 1965. Then, after two more years, came the trial with the
complainant having testified on direct examination but not having as yet been fully
cross-examined. At the continuation of the trial set for June 7, 1967 such witness did
not show up. The provincial fiscal moved for postponement. Counsel for petitioner,
however, not only objected but sought the dismissal of the case based on the right of
the accused to speedy trial. Respondent Judge this time acceded, but would likewise
base his order of dismissal, orally given, on the cross-examination of complainant not
having started as yet. Later that same day, respondent Judge did reconsider the order
and reinstated the case, his action being due to its being shown that the cross-
examination of the complainant had already started.
On the above facts, there can be no dispute as to the applicable law. It is not to be lost
sight of that the petition on its face had more than its fair share of plausibility, thus
eliciting an affirmative response to the plea for a writ of preliminary injunction, duly
issued by this Court. For it was all too evident that petitioner could rely on his
constitutional right to a speedy trial. For more than six years the threat of his being
subjected to a penal liability did hang over his head, with the prosecution failing to take
any step to have the matter heard. He did ask that the case be dismissed, but
respondent Judge turned him down. When the trial did at long last take place after two
more years and again postponement was sought as the complainant was not available
for cross- examination, petitioner, as could have been expected, did again seek to put
an end to his travail with a motion for dismissal grounded once more on the
undeniable fact that he was not accorded the speedy trial that was his due. This time
respondent Judge was quite receptive and about time too. The order of dismissal
given in open court had then the effect of an acquittal. For the respondent Judge to
give vent to a change of heart with his reconsideration was to subject petitioner to the
risk of being put in jeopardy once more. Nor could respondent Judge's allegation that
he could do so as he acted under a misapprehension be impressed with the quality of
persuasiveness. The decisive fact was the absence of that speedy trial guaranteed by
the Constitution. This petition then, to repeat, possesses merit.
1. The right to a speedy trial means one free from vexatious, capricious and
oppressive delays, its salutary objective being to assure that an innocent person may
be free from the anxiety and expense of a court litigation or, if otherwise, of having his
guilt determined within the shortest possible time compatible with the presentation and
consideration of whatever legitimate defense he may interpose.
2
The remedy in the
event of a non-observance of this right is by habeas corpus if the accused were
restrained of his liberty, or by certiorari, prohibition, or mandamus for the final
dismissal of the case.
3

In the first Supreme Court decision after the Constitution took effect, an appeal from a
judgment of conviction, it was shown that the criminal case had been dragging on for
almost five years. When the trial did finally take place, it was tainted by irregularities.
While ordinarily the remedy would have been to remand the case again for a new trial,
the appealed decision of conviction was set aside and the accused acquitted. Such a
judgment was called for according to the opinion penned by Justice Laurel, if this
constitutional right were to be accorded respect and deference. Thus: "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 came to an end and that they be
immediately discharged from the custody of the law."
4

Conformably to the above ruling as well as the earlier case of Conde v. Rivera,
5
the
dismissal of a second information for frustrated homicide was ordered by the Supreme
Court on a showing that the first information had been dismissed after a lapse of one
year and seven months from the time the original complaint was filed during which
time on the three occasions the case was set for trial, the private prosecutor twice
asked for postponements and once the trial court itself cancelled the entire calendar
for the month it was supposed to have been heard. As pointed out in such decision:
"The right of the accused to have a speedy trial is violated not only when unjustified
postponements of the trial are asked for and secured, but also when, without good
cause or justifiable motive, a long period of time is allowed to elapse without having
his case tried." 6 It did not matter that in this case the postponements were sought
and obtained by the private prosecution, although with the consent and approval of the
fiscal. Nor was there a waiver and abandonment of the right to a speedy trial when
there was a failure on the part of the accused to urge that the case be heard. "Such a
waiver or abandonment may be presumed only when the postponement of the trial
has been sought and obtained [by him]". 7 A finding that there was an infringement of
this right was predicated on an accused having been criminally prosecuted for an
alleged abuse of chastity in a justice of the peace court as a result of which he was
arrested three times, each time having to post a bond for his provisional liberty.
Mandamus to compel the trial judge to dismiss the case was under the circumstances
the appropriate remedy. 8
In Mercado v. Santos, 9 the second occasion Justice Laurel had to write the opinion
for the Supreme Court in a case of this nature, the transgression of this constitutional
mandate came about with petitioner having in a space of twenty months been arrested
four times on the charge of falsifying his deceased wife's will, the first two complaints
having been subsequently withdrawn only to be refiled a third time and thereafter
dismissed after due investigation by the justice of the peace. Undeterred the provincial
fiscal filed a motion for reinvestigation favorably acted on by the Court of First Instance
which finally ordered that the case be heard on the merits. At this stage the accused
moved to dismiss but was rebuffed. He sought the aid of the Court of Appeals in a
petition for certiorari but did not prevail. It was then that the matter was elevated to the
Supreme Court which reversed the Court of Appeals, the accused "being entitled to
have the criminal proceedings against him quashed." It was stressed in Justice
Laurel's opinion: "An accused person is entitled to a trial at the earliest opportunity. ...
He cannot be oppressed by delaying the commencement of trial for an unreasonable
length of time. If the proceedings pending trial are deferred, the trial itself is
necessarily delayed. It is not to be supposed, of course, that the Constitution intends
to remove from the prosecution every reasonable opportunity to prepare for trial.
Impossibilities cannot be expected or extraordinary efforts required on the part of the
prosecutor or the court."
10
The opinion likewise considered as not decisive the fact
that the provincial fiscal did not intervene until an information was filed charging the
accused with the crime of falsification the third time. Thus: "The Constitution does not
say that the right to a speedy trial may be availed of only where the prosecution for
crime is commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a person is
prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the
offense or the manner in which it is authorized to be commenced."
11

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 v. Obsania noted earlier made reference to four
Philippine decisions, People v. Diaz,
12
People v. Abano,
13
People v.
Robles,
14
and People v. Cloribel.
15
In all of the above cases, 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 v.
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 v.
Abano, 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 v. 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."
16
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' insistense on their constitutional right to
speedy trial and by reason of the prosecution's failure to appear on the date of
trial.' (Emphasis supplied.)"
17
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.
3. Respondent Judge would rely on Cabarroguis v. San Diego
18
to lend support to the
reconsideration of his order of dismissal. The case is not applicable; the factual setting
is different. The order of dismissal set aside in that case arose from the belief of the
court that the crime of estafa was not committed as the liability was civil in character.
At no stage then was there a plea that the accused was denied his right to a speedy
trial. The reconsideration was granted as there was documentary evidence to show
that the intention to defraud on the part of the accused could be shown. Under such
circumstances, this Court saw no grave abuse of discretion in the actuation of the trial
judge. To repeat, the proceeding now before this Court is anything but that. Petitioner
not once but twice did seek to have the prosecution for damage to property against
him terminated as the matter was pending for at least six years, the first time he
sought to put an end to it. When at last, the trial stage was reached, the complaining
witness testified on direct examination but made no appearance when his cross-
examination was to be continued. A clear case of a denial of the right to a speedy trial
was thus made out. There was an order of dismissal that amounted to an acquittal. No
reconsideration could therefore be had without offending the provision on double
jeopardy.
WHEREFORE, the writ of certiorari is granted annulling the order of respondent Judge
of June 7, 1967 reconsidering his order of dismissal and reinstating the criminal case
against petitioner. The writ of prohibition is likewise granted, respondent Judge and
respondent Provincial Fiscal of Pampanga being restrained and precluded from
continuing with this case against petitioner, now adjudged definitely dismissed. The
writ of preliminary injunction issued is made permanent.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee, Barredo and Villamor, JJ.,
concur.
Concepcion C.J., Dizon and Makasiar, JJ., are on leave.








































Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 173319 December 4, 2009
FEDERICO MIGUEL OLBES, Petitioner,
vs.
HON. DANILO A. BUEMIO, in his capacity as pairing presiding judge of Branch
22 of the Metropolitan Trial Court of Manila, PEOPLE OF THE PHILIPPINES,
SAMIR MUHSEN and ROWENA MUHSEN, Respondents.
D E C I S I O N
CARPIO MORALES, J.:
On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes (petitioner) was
indicted for Grave Coercion before the Metropolitan Trial Court (MeTC) of Manila by
Information
1
dated June 28, 2002 which was raffled to Branch 22 thereof. On October
28, 2002, petitioner posted bail and was released.
Denying petitioners motion to defer or suspend his arraignment in light of his pending
petition for review before the Department of Justice from the City Fiscals Resolution
finding probable cause to hale him into court, Judge Hipolito dela Vega proceeded
with petitioners arraignment on February 12, 2003 in which he pleaded not guilty to
the charge.
2
Pre-trial was thereupon set to May 28, 2003 which was, however,
declared a non-working day due to the occurrence of typhoon "Chedeng." The pre-trial
was thus reset to October 23, 2003.
3

At the scheduled pre-trial on October 23, 2003, petitioner failed to appear, prompting
the trial court to issue a warrant for his arrest, which warrant was, however, later
recalled on discovery that neither petitioner nor his counsel was notified of said
schedule. Pre-trial was again reset to January 21, 2004.
4

Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003, petitioner
filed a Motion to Dismiss
5
the Information on the ground of violation of his right to a
speedy trial under Republic Act No. 8493
6
or the Speedy Trial Act of 1998 and
Supreme Court Circular (SCC) No. 38-98.
7
He argued that "considering that [he] was
not - without any fault on his part - brought to trial within 80 days from the date he was
arraigned, this case should be dismissed pursuant to Rule 119, Section 9
8
in relation
to Rule 119, Section 6 of the Rules."
9

The trial court, through pairing Judge Danilo A. Buemio (respondent judge), denied
petitioners Motion to Dismiss by Order
10
of December 5, 2003, holding that petitioner
played a big part in the delay of the case, and that technical rules of procedure were
meant to secure, not override, substantial justice.
Petitioners Motion for Reconsideration of the December 5, 2003 Order was denied by
Order
11
of March 3, 2004 after respondent judge noted that during petitioners
arraignment on February 12, 2003, he interposed no objection to the setting of the
pre-trial to May 28, 2003. Besides, respondent judge held, strict compliance with the
Speedy Trial Act was improbable, given the volume of cases being filed with the
MeTC. Additionally respondent judge held that the term "speedy trial" as applied in
criminal cases is a relative term such that the trial and disposition of cases depended
on several factors including the availability of counsel, witnesses and prosecutor, and
weather conditions.
Petitioner challenged respondent judges orders via certiorari and prohibition before
the Regional Trial Court (RTC) of Manila, alleging that not only was he (petitioner) not
brought to trial within 80 days from the date of his arraignment as required under
Section 6, Rule 119, but the prosecution had failed to establish the existence of any of
the "time exclusions" provided under Section 3
12
of the same Rule to excuse its failure
to bring him to trial within the 80-day period.
By Decision
13
of January 31, 2006, the RTC denied the petition, holding that Section 9
of Rule 119 of the Rules of Court does not call for the automatic dismissal of a case
just because trial has not commenced within 80 days from arraignment; that the
proceedings before the MeTC were not attended by vexatious, capricious and
oppressive delays; and that the concept of a speedy trial is not a mere question of
numbers that could be computed in terms of years, months or days but is understood
according to the peculiar circumstances of each case, citing SPO1 Sumbang, Jr. v.
Gen. Court Martial PRO-Region 6.
14

The RTC further held that in "determining whether petitioners right to speedy trial was
violated,"
15
the circumstances that respondent judge was the pairing judge of Br. 22 of
the MeTC who "may be assumed also [to] preside over his own regular court and
devotes limited time to his pairing court" and that first level courts in Manila have an
excessive load of cases should also be taken into consideration.
His motion for reconsideration having been denied by the RTC,
16
petitioner lodged the
present petition for review which, in the main, faults the RTC
I
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT COMPLIANCE
WITH RULE 119, SECTION 9 OF THE RULES IS NOT MANDATORY. THE RIGHT
OF AN ACCUSED TO A SPEEDY TRIAL IS A SUBSTANTIVE RIGHT THAT
CANNOT BE DISREGARDED.
II
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT THE
ENUMERATION OF ALLOWABLE TIME EXCLUSIONS UNDER RULE 119,
SECTION 3 IS NOT EXCLUSIVE, AND THAT THE FAILURE TO BRING
PETITIONER TO TRIAL WITHIN THE PERIOD PROVIDED UNDER RULE 119,
SECTION 6 WAS JUSTIFIED.
x x x x,
17

errors which raise a question of law.
Petitioner argues that his right to speedy trial is a substantive right and that, contrary
to the RTC ruling, Section 9 of Rule 119 is mandatory in character, having been taken
from SCC No. 38-98, strict compliance with which is urged to remove any attempt on
the part of judges to exercise discretion with respect to the time frame for conducting
the trial of an accused; that the last paragraph of said Section 9 clearly indicates that it
is the right of an accused to move for dismissal of the Information should the
prosecution fail to prove the existence of the time exclusions under Section 3 of Rule
119; and that the enumeration of the allowable time exclusions under Section 3 is
exclusive, hence, the RTC erred in considering the excessive caseload of respondent
judge, as a mere pairing judge, to be an allowable time exclusion under the Rules.
In its Comment,
18
the People, through the Office of the Solicitor General (OSG),
counters that "speed alone is not the chief objective of a trial" such that mere assertion
of a violation of the right to speedy trial does not necessarily result in the automatic
dismissal of an Information; that the time exclusions referred to in paragraphs (a) to (f)
of Section 3, Rule 119 are not exclusive and admit of other exceptions; that petitioner
himself contributed to the delay in the proceedings when he filed a frivolous motion to
suspend proceedings and failed to appear during the scheduled pre-trial; and that the
RTC statement about respondent judge being a mere pairing judge was not an
apology for the courts congested dockets but a mere statement of fact as to the
impossibility of setting the case for pre-trial at an earlier date.
Furthermore, the OSG asserts that respondent judges denial of petitioners motion to
dismiss was in order as he correctly applied the principles of relativity and flexibility in
determining whether petitioners right to speedy trial had been violated.
19

Respondents-private complainants, on the other hand, maintain in their
Comment
20
that several Supreme Court decisions
21
dealing with the issue of the
constitutional guaranty of a speedy trial, the Speedy Trial Act of 1998, and SCC No.
38-98 have held that the right is deemed violated only when the proceedings are
attended by vexatious, capricious and oppressive delays, which did not obtain in the
present case, petitioner himself having been instrumental in the delay in the
prosecution of the case.
The petition does not impress.
Petitioner draws attention to the time gap of 105 days from his arraignment on
February 12, 2003 up to the first pre-trial setting on May 28, 2003, and another gap of
148 days from the latter date up to the second pre-trial setting on October 23, 2003 or
for a total of 253 days - a clear contravention, according to petitioner, of the 80-day
time limit from arraignment to trial.
It bears noting, however, that on his arraignment on February 12, 2003, petitioner
interposed no objection to the setting of the pre-trial to May 28, 2003 which was, as
earlier stated, later declared a non-working day. Inarguably, the cancellation of the
scheduled pre-trial on that date was beyond the control of the trial court.1avvphi1
Petitioner argues, however, that the lapse of 253 days (from arraignment to October
23, 2003) was not justified by any of the excusable delays as embodied in the time
exclusions
22
specified under Section 3 of Rule 119. The argument is unavailing.
In Solar Team Entertainment, Inc. v. Judge How,
23
the Court stressed that the
exceptions consisting of the time exclusions provided in the Speedy Trial Act of 1998
reflect the fundamentally recognized principle that "speedy trial" is a relative term and
necessarily involves a degree of flexibility. This was reiterated in People v.
Hernandez,
24
viz:
The right of the accused to a speedy trial is guaranteed under Sections 14(2) and 16,
Article III of the 1987 Constitution. In 1998, Congress enacted R.A. No. 8493,
otherwise known as the "Speedy Trial Act of 1998." The law provided for time limits in
order "to ensure a speedy trial of all criminal cases before the Sandiganbayan, [RTC],
Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court." On
August 11, 1998, the Supreme Court issued Circular No. 38-98, the Rules
Implementing R.A. No. 8493. The provisions of said circular were adopted in the 2000
Revised Rules of Criminal Procedure. As to the time limit within which trial must
commence after arraignment, the 2000 Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of section 1(g),
Rule 116 and the preceding section 1, for the first twelve-calendar-month period
following its effectivity on September 15, 1998, the time limit with respect to the period
from arraignment to trial imposed by said provision shall be one hundred eighty (180)
days. For the second twelve-month period, the time limit shall be one hundred twenty
(120) days, and for the third twelve-month period, the time limit shall be eighty (80)
days.
R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal
Procedure enumerate certain reasonable delays as exclusions in the computation of
the prescribed time limits. They also provide that "no provision of law on speedy trial
and no rule implementing the same shall be interpreted as a bar to any charge of
denial of speedy trial as provided by Article III, Section 14(2), of the 1987
Constitution." Thus, in spite of the prescribed time limits, jurisprudence continues to
adopt the view that the concept of "speedy trial" is a relative term and must
necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held:
The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. x x x
While justice is administered with dispatch, the essential ingredient is orderly,
expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with
delays and depends upon circumstances. It secures rights to the accused, but it does
not preclude the rights of public justice. Also, it must be borne in mind that the rights
given to the accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent.
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.
In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a)
length of delay; (b) the reason for the delay; (c) the defendants assertion of his right;
and (d) prejudice to the defendant. (citations omitted) (underscoring supplied)
The time limits set by the Speedy Trial Act of 1998 do not thus preclude justifiable
postponements and delays when so warranted by the situation.
25
To the Court, the
reasons for the postponements and delays attendant to the present case reflected
above are not unreasonable. While the records indicate that neither petitioner nor his
counsel was notified of the resetting of the pre-trial to October 23, 2003, the same
appears to have been occasioned by oversight or simple negligence which, standing
alone, does not prove fatal to the prosecutions case. The faux pas was acknowledged
and corrected when the MeTC recalled the arrest warrant it had issued against
petitioner under the mistaken belief that petitioner had been duly notified of the
October 23, 2003 pre-trial setting.
26

Reiterating the Courts pronouncement in Solar Team Entertainment, Inc.
27
that
"speedy trial" is a relative and flexible term, Lumanlaw v. Peralta, Jr.
28
summons the
courts to maintain a delicate balance between the demands of due process and the
strictures of speedy trial on the one hand, and the right of the State to prosecute
crimes and rid society of criminals on the other.
Applying the balancing test for determining whether an accused has been denied his
constitutional right to a speedy trial, or a speedy disposition of his case, taking into
account several factors such as the length and reason of the delay, the accuseds
assertion or non-assertion of his right, and the prejudice to the accused resulting from
the delay,
29
the Court does not find petitioner to have been unduly and excessively
prejudiced by the "delay" in the proceedings, especially given that he had posted bail.
WHEREFORE, the petition is DENIED.
Costs against Petitioner.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice






















Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-30104 July 25, 1973
HON. GREGORIO. N. GARCIA, Judge of the City Court of Manila, and
FRANCISCO LORENZANA, petitioners,
vs.
HON. FELIX DOMINGO, Judge of the Court of First Instance of Manila,
EDGARDO CALO and SIMEON CARBONNEL, respondents.
Andres R. Narvasa, Manuel V. Chico and Felipe B. Pagkanlungan for petitioners.
Rafael S. Consengco for respondent Calo, et al.
Respondent Judge in his own behalf.

FERNANDO, J .:
The pivotal question in this petition for certiorari and prohibition, one which thus far
has remained unresolved, is the meaning to be accorded the constitutional right to
public trial.
1
More specifically, did respondent Judge commit a grave abuse of
discretion in stigmatizing as violative of such a guarantee the holding of the trial of the
other respondents
2
inside the chambers of city court Judge Gregorio Garcia named
as the petitioner.
3
That was done in the order now impugned in this suit, although
such a procedure had been agreed to beforehand by the other respondents as
defendants, the hearings have been thus conducted on fourteen separate occasions
without objection on their part, and without an iota of evidence to substantiate any
claim as to any other person so minded being excluded from the premises. It is thus
evident that what took place in the chambers of the city court judge was devoid of
haste or intentional secrecy. For reasons to be more fully explained in the light of the
facts ascertained the unique aspect of this case having arisen from what turned out
to be an unseemly altercation, force likewise being employed, due to the mode in
which the arrest of private petitioner for a traffic violation was sought to be effected by
the two respondent policemen thus resulting in charges and counter-charges with
eight criminal cases being tried jointly by city court Judge in the above manner we
rule that there was no transgression of the right to a public trial, and grant the petition.
It was alleged and admitted in the petition: "In Branch I the City Court of Manila
presided over by petitioner Judge, there were commenced, by appropriate
informations all dated January 16, 1968, eight (8) criminal actions against respondent
Edgardo Calo, and Simeon Carbonnel and Petitioner Francisco Lorenzana, as follows:
a. Against Edgardo Calo (on complaint of Francisco Lorenzana) (1) Criminal Case No.
F-109192, also for slight physical injuries; (2) Criminal Case No. F-109192, alsofor
slight physical injuries; and (3) Criminal Case No. F-109193, for maltreatment;
b. Against Simeon Carbonnel (id.) (1)Criminal Case No. F-109197, for maltreatment;
(2) Criminal Case No. F-109196, for slight physical injuries; and (3) Criminal Case No.
F-109198, for light threats; (c) Against Francisco Lorenzana (on complaint of Calo and
Carbonnel) (1) Criminal Case No. F-109201, for violation of Sec. 887 of the Revised
Ordinances of Manila (resisting an officer); and (2) Criminal Case No. F-109200, for
slander."
4
The above was followed by this recital: "The trial of the aforementioned
cases was jointly held on March 4, 1968, March 18, 1968, March 23, 1968, March 30,
1968, April 17, 1968, April 20, 1968, May 4,1968, May 11, 1968, June 1, 1968, June
15, 1968, June 22, 1968, June 29, 1968, August 3, 1968 and August 10, 1968. All the
fourteen (14) trial dates except March 4 and 18, and April 17, 1968 fell on a
Saturday. This was arranged by the parties and the Court upon the insistence of
respondents Calo and Carbonnel who, as police officers under suspension because of
the cases, desired the same to be terminated as soon as possible and as there were
many cases scheduled for trial on the usual criminal trial days (Monday, Wednesday
and Friday), Saturday was agreed upon as the invariable trial day for said eight (8)
criminal cases."
5
Also this: "The trial of the cases in question was held, with the
conformity of the accused and their counsel, in the chambers of Judge Garcia."
6
Then
came these allegations in the petition: "During all the fourteen (14) days of trial,
spanning a period of several months (from March to August, 1968), the accused were
at all times represented by their respective counsel, who acted not only in defense of
their clients, but as prosecutors of the accusations filed at their clients' instance. There
was only one (1) day when Atty. Consengco, representing respondent Calo and
Carbonnel, was absent. This was on April 20, 1968. But at the insistence of Pat.
Carbonnel, the trial proceeded, and said respondent cross-examined one of the
witnesses presented by the adverse party. In any case, no pretense has been made
by the respondents that this constituted an irregularity correctible on certiorari. At the
conclusion of the hearings the accused, thru counsel, asked for and were granted time
to submit memoranda. Respondents Calo and Carbonnel, thru counsel, Atty. Rafael
Consengco, submitted a 14-page memorandum with not less than 35 citations of
relevant portions of the transcript of stenographic notes in support of their prayer for
exoneration, and conviction of petitioner Lorenzana in respect of their countercharges
against the latter. It is worthy of note that up to this late date, said respondents Calo
and Carbonnel had not objected to or pointed out any supposed irregularity in
the proceedings thus far; the memorandum submitted in their behalf is confined to a
discussion of the evidence adduced in, and the merits of the cases."
7
It was stated in
the next petition:
"The promulgation of judgment was first scheduled on September 23, 1968. This was
postponed to September 28, 1968 at the instance of Atty. Rafael Consengco, as
counsel respondents Calo and Carbonnel, and again to October 1, 1968 at 11 o'clock
in the morning, this time at the instance of Atty. Consengco and Atty. Francisco Koh
who had, in the meantime, also entered his appearance as counsel for respondents
Calo and Carbonnel. The applications for postponement were not grounded upon any
supposed defect or irregularity of the proceedings."
8

Mention was then made of when a petition for certiorari was filed with respondent
Judge: "Early in the morning of October 1, 1968, Edgardo Calo and Simeon
Carbonnel, thru their counsel, Atty. Rafael S. Consengco, filed with the Court of First
Instance a petition for certiorari and prohibition, with application for preliminary
prohibitory and mandatory injunction ... [alleging jurisdictional defects]."
9
Respondent
Judge acting on such petition forthwith issued a restraining order thus causing the
deferment of the promulgation of the judgment. After proceedings duly had, there was
an order from him "declaring that 'the constitutional and statutory rights of the
accused' had been violated, adversely affecting their 'right to a free and impartial trial'
[noting] 'that the trial of these cases lasting several weeks held exclusively in
chambers and not in the court room open the public';" and ordering the city court
Judge, now petitioner, "to desist from reading or causing to be read or promulgated
the decisions he may have rendered already in the criminal cases (in question) ...
pending in his Court, until further orders of this Court.'"
10

A motion for reconsideration proving unavailing, petition on January 28, 1969,
elevated the matter to this Tribunal by means of the present suit for certiorari and
prohibition. In its resolution of February 3, 1969, respondents were required to answer,
with a preliminary injunction likewise being issued. As was to be expected the answer
filed by respondent Judge on March 11, 1969 and that by the other respondents on
March 19, 1969 did attempt to justify the validity of the finding that there was a failure
to respect the right to a public trial of accused persons. Neither in such pleadings nor
in the memorandum filed, although the diligence displayed by counsel was quite
evident, was there any persuasive showing of a violation of constitutional guarantee of
a public trial, the basic issue to be resolved. Rather it was the mode of approach
followed by counsel Andres R. Narvasa for petitioners that did manifest a deeper
understanding of its implications and ramifications. Accordingly, as previously stated, it
is for us to grant the merits prayed for.
1. The 1935 Constitution which was in force at the time of the antecedents of this
petition, as set forth at the outset, explicitly enumerated the right to a public trial to
which an accused was entitled. So it is, as likewise made clear, under present
dispensation. As a matter of fact, that was one constitutional provision that needed
only a single, terse summation from the Chairman of the Committee on the Bill of
Rights, Delegate, later Justice, Jose P. Laurel, to gain acceptance. As was stressed
by him: "Trial should also be public in order to offset any danger of conducting it in an
illegal and unjust manner."
11
It would have been surprising if its proposed inclusion in
the Bill of Rights had provoked any discussion, much less a debate. It was merely a
reiteration what appeared in the Philippine Autonomy Act of 1916, popularly known as
the Jones Law.
12
Earlier, such a right found expression in the Philippine Bill of 1902,
likewise an organic act of the then government of this country as an unincorporated
territory of the United States.
13
Historically as was pointed out by Justice Black,
speaking for the United States Supreme Court in the leading case of In re
Oliver:
14
"This nation's accepted practice of guaranteeing a public trial to an accused
has its roots in [the] English common law heritage.
15
He then observed that the exact
date of its origin is obscure, "but it likely evolved long before the settlement of the
[United States] as an accompaniment of the ancient institution of jury trial."
16
It was
then noted by him that there, "the guarantee to an accused of the right to a public trial
appeared in a state constitution in 1776."
17
Later it was embodied in the Sixth
Amendment of the Federal Constitution ratified in 1791.
18
He could conclude his
historical survey "Today almost without exception every state by constitution, statute,
or judicial decision, requires that all criminal trials be open to the public."
19
Such is the
venerable, historical lineage of the right to a public trial.
2. The crucial question of the meaning to be attached this provision remains. The
Constitution guarantees an accused the right to a public trial. What does it signify?
Offhand it does seem fairly obvious that here is an instance where language is to be
given a literal application. There is no ambiguity in the words employed. The trial must
be public. It possesses that character when anyone interested in observing the
manner a judge conducts the proceedings in his courtroom may do so. There is to be
no ban on such attendance. His being a stranger to the litigants is of no moment. No
relationship to the parties need be shown. The thought that lies behind this safeguard
is the belief that thereby the accused is afforded further protection, that his trial is likely
to be conducted with regularity and not tainted with any impropriety. It is not amiss to
recall that Delegate Laurel in his terse summation the importance of this right singled
out its being a deterrence to arbitrariness. It is thus understandable why such a right is
deemed embraced in procedural due process.
20
Where a trial takes place, as is quite
usual, in the courtroom and a calendar of what cases are to be heard is posted, no
problem arises. It the usual course of events that individuals desirous of being present
are free to do so. There is the well recognized exception though that warrants the
exclusion of the public where the evidence may be characterized as "offensive to
decency or public morals."
21

What did occasion difficulty in this suit was that for the convenience of the parties, and
of the city court Judge, it was in the latter's air-conditioned chambers that the trial was
held. Did that suffice to investigate the proceedings as violative of this right? The
answer must be in the negative. There is no showing that the public was thereby
excluded. It is to be admitted that the size of the room allotted the Judge would reduce
the number of those who could be our present. Such a fact though is not indicative of
any transgression of this right. Courtrooms are not of uniform dimensions. Some are
smaller than others. Moreover, as admitted by Justice Black in his masterly In re
Oliver opinion, it suffices to satisfy the requirement of a trial being public if the accused
could "have his friends, relatives and counsel present, no matter with what offense he
may be charged."
22

Then, too, reference may also be made to the undisputed fact at least fourteen
hearings had been held in chambers of the city court Judge, without objection on the
part of respondent policemen. What was said by former Chief Justice Moran should
erase any doubt as to the weight to be accorded, more appropriately the lack of
weight, to any such objection raised. Thus: "In one case, the trial of the accused was
held in Bilibid prison. The accused, invoking his right to a public trial, assigned the
procedure thus taken as error. The Supreme Court held that as it affirmatively appears
on the record that the accused offered no objection to the trial of his case in the place
where it was held, his right is deemed waived."
23
The decision referred to, United
States v. Mercado,
24
was handed down sixty-eight years ago in 1905.
It does seem that the challenged order of respondent is far from being invulnerable.
3. That is all that need be said as to the obvious merit of this petition. One other
objection to the conduct of the proceedings by the city court Judge may be briefly
disposed of. Respondent Judge would seek to lend support to an order at war with
obvious meaning of a constitutional provision by harping on the alleged abdication by
an assistant fiscal of his control over the prosecution. Again here there was a failure to
abide by settled law. If any party could complain at all, it is the People of the
Philippines for whom the fiscal speaks and acts. The accused cannot in law be termed
an offended party for such an alleged failure to comply with official duty. Moreover,
even assuming that respondent policemen could be heard to raise such a grievance,
respondent Judge ought to have been aware that thereby no jurisdictional defect was
incurred by the city court Judge. As was so emphatically declared by Justice J.B.L.
Reyes in Cariaga v. Justo-Guerrero:
25
"The case below was commenced and
prosecuted without the intervention, mediation or participation of the fiscal or any of
his deputies. This, notwithstanding, the jurisdiction of the court was not affected ... but
the court should have cited the public prosecutor to intervene ... ."
26

4. There is much to be said of course for the concern displayed by respondent Judge
to assure the reality as against the mere possibility of a trial being truly public. If it
were otherwise, such a right could be reduced to a barren form of words. To the extent
then that the conclusion reached by him was motivated by an apprehension that there
was an evasion of a constitutional command, he certainly lived up to what is expected
of a man of the robe. Further reflection ought to have convinced him though that such
a fear was unjustified. An objective appraisal of conditions in municipal or city courts
would have gone far in dispelling such misgivings. The crowded daily calendar, the
nature of the cases handled, civil as well as criminal, the relaxed attitude on
procedural rules not being strictly adhered to all make for a less tense atmosphere. As
a result the attendance of the general public is much more in evidence; nor is its
presence unwelcome. When it is remembered further that the occupants of such
courts are not chosen primarily for their legal acumen, but taken from that portion of
the bar more considerably attuned to the pulse of public life, it is not to be rationally
expected that an accused would be denied whatever solace and comfort may come
from the knowledge that a judge, with the eyes of the alert court alert to his demeanor
and his rulings, would run the risk of being unjust, unfair, or arbitrary. Nor does it
change matters, just because, as did happen here, it was in the air-conditioned
chambers of a city court judge rather than in the usual place that the trial took place.
WHEREFORE, the writ of certiorari prayed for is granted nullifying, setting aside, and
declaring bereft of any legal force or effect the order of respondent Judge Felix
Domingo November 29, 1968 for being issued with grave abuse of discretion. The writ
of prohibition sought by petitioner is likewise granted, commanding respondent Judge
or any one acting in his place to desist from any further action in Criminal Case No.
74830 of the Court of First Instance of Manila other than that of dismissing the same.
The preliminary writ of injunction issued by this Court in its resolution of February 3,
1969 against the actuation of respondent Judge is made permanent. With costs
against respondent policemen Edgardo Calo and Simeon Carbonnel.
Makalintal, Actg. C.J., Teehankee, Makasiar, Antonio, Esguerra, JJ., concur.
Castro, J., did not take part.
Zaldivar and Barredo, JJ., are on leave.






















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 01-4-03-S.C. June 29, 2001
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER
PRESIDENT JOSEPH E. ESTRADA.
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA
BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY.
RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.
VITUG, J .:
The travails of a deposed President continue. The Sandiganbayan reels to start
hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the
event via live television and live radio broadcast and endeavors this Court to allow it
that kind of access to the proceedings.
On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an
association representing duly franchised and authorized television and radio networks
throughout the country, sent a letter requesting this Court to allow live media coverage
of the anticipated trial of the plunder and other criminal cases filed against former
President Joseph E. Estrada before the Sandiganbayan in order "to assure the public
of full transparency in the proceedings of an unprecedented case in our history."
2
The
request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief
Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed
the instant petition,
3
submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former
highest official of the land, members of his family, his cohorts and, therefore,
it cannot be over emphasized that the prosecution thereof, definitely involves
a matter of public concern and interest, or a matter over which the entire
citizenry has the right to know, be informed and made aware of.
"4. There is no gainsaying that the constitutional right of the people to be
informed on matters of public concern, as in the instant cases, can best be
recognized, served and satisfied by allowing the live radio and television
coverage of the concomitant court proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will
also serve the dual purpose of ensuring the desired transparency in the
administration of justice in order to disabuse the minds of the supporters of
the past regime of any and all unfounded notions, or ill-perceived attempts on
the part of the present dispensation, to railroad the instant criminal cases
against the Former President Joseph Ejercito Estrada."
4

Public interest, the petition further averred, should be evident bearing in mind the right
of the public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of
this Court in a case for libel filed by then President Corazon C. Aquino. The resolution
read:
"The records of the Constitutional Commission are bereft of discussion
regarding the subject of cameras in the courtroom. Similarly, Philippine
courts have not had the opportunity to rule on the question squarely.
"While we take notice of the September 1990 report of the United States
Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still
the current rule obtaining in the Federal Courts of the United States prohibits
the presence of television cameras in criminal trials. Rule 53 of the Federal
Rules of Criminal Procedure forbids the taking of photographs during the
progress of judicial proceedings or radio broadcasting of such proceedings
from the courtroom. A trial of any kind or in any court is a matter of serious
importance to all concerned and should not be treated as a means of
entertainment. To so treat it deprives the court of the dignity which pertains to
it and departs from the orderly and serious quest for truth for which our
judicial proceedings are formulated.
"Courts do not discriminate against radio and television media by forbidding
the broadcasting or televising of a trial while permitting the newspaper
reporter access to the courtroom, since a television or news reporter has the
same privilege, as the news reporter is not permitted to bring his typewriter or
printing press into the courtroom.
"In Estes vs. Texas. the United States Supreme Court held that television
coverage of judicial proceedings involves an inherent denial of the due
process rights of a criminal defendant. Voting 5-4, the Court through Mr.
Justice Clark identified four (4) areas of potential prejudice which might arise
from the impact of the cameras on the jury, witnesses, the trial judge and the
defendant. The decision in part pertinently stated:
"Experience likewise has established the prejudicial effect of
telecasting on witnesses. Witnesses might be frightened, play to the
camera, or become nervous. They are subject to extraordinary out-
of court influences which might affect their testimony. Also,
telecasting not only increases the trial judge's responsibility to avoid
actual prejudice to the defendant, it may as well affect his own
performance. Judges are human beings also and are subject to the
same psychological reactions as laymen. For the defendant,
telecasting is a form of mental harassment and subjects him to
excessive public exposure and distracts him from the effective
presentation of his defense. 1wphi1.nt
'The television camera is a powerful weapon which intentionally or
inadvertently can destroy an accused and his case in the eyes of
the public.'
"Representatives of the press have no special standing to apply for a writ of
mandate to compel a court to permit them to attend a trial, since within the
courtroom, a reporter's constitutional rights are no greater than those of any
other member of the public. Massive intrusion of representatives of the news
media into the trial itself can so alter or destroy the constitutionally necessary
judicial atmosphere and decorum that the requirements of impartiality
imposed by due process of law are denied the defendant and a defendant in
a criminal proceeding should not be forced to run a gauntlet of reporters and
photographers each time he enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due process as
well as to the fair and orderly administration of justice, and considering
further that the freedom of the press and the right of the people to information
may be served and satisfied by less distracting, degrading and prejudicial
means, live radio and television coverage of court proceedings shall not be
allowed. Video footages of court hearings for news purposes shall be
restricted and limited to shots of the courtroom, the judicial officers, the
parties and their counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be permitted during the
trial proper.
" Accordingly, in order to protect the parties' right to due process, to prevent
the distraction of the participants in the proceedings and in the last analysis,
to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and
television coverage of court proceedings. Video footage of court hearings for
news purposes shall be limited and restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it
has become an important instrument in the quest for truth.
5
Recent history
exemplifies media's invigorating presence, and its contribution to society is quite
impressive. The Court, just recently, has taken judicial notice of the enormous effect of
media in stirring public sentience during the impeachment trial, a partly judicial and
partly political exercise, indeed the most-watched program in the boob-tubes during
those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the right to public information,
on the one hand, and the fundamental rights of the accused, on the other hand, along
with the constitutional power of a court to control its proceedings in ensuring a fair and
impartial trial.
6

When these rights race against one another, jurisprudence
7
tells us that the right of
the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a verdict
solely on the basis of a just and dispassionate judgment, a verdict that would come
only after the presentation of credible evidence testified to by unbiased witnesses
unswayed by any kind of pressure, whether open or subtle, in proceedings that are
devoid of histrionics that might detract from its basic aim to ferret veritable facts free
from improper influence,
8
and decreed by a judge with an unprejudiced mind,
unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is
proved in a trial that is not lifted above its individual settings nor made an object of
public's attention9 and where the conclusions reached are induced not by any outside
force or influence
10
but only by evidence and argument given in open court, where
fitting dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in
hardy climate, with every reason to presume firmness of mind and resolute
endurance, but it must also be conceded that "television can work profound changes
in the behavior of the people it focuses on."
11

Even while it may be difficult to quantify the influence, or pressure that media can
bring to bear on them directly and through the shaping of public opinion, it is a fact,
nonetheless, that, indeed, it does so in so many ways and in varying degrees. The
conscious or unconscious effect that such a coverage may have on the testimony of
witnesses and the decision of judges cannot be evaluated but, it can likewise be said,
it is not at all unlikely for a vote of guilt or innocence to yield to it.
12
It might be farcical
to build around them an impregnable armor against the influence of the most powerful
media of public opinion.
13

To say that actual prejudice should first be present would leave to near nirvana the
subtle threats to justice that a disturbance of the mind so indispensable to the calm
and deliberate dispensation of justice can create.
14
The effect of television may
escape the ordinary means of proof, but it is not far-fetched for it to gradually erode
our basal conception of a trial such as we know it now.
15

An accused has a right to a public trial but it is a right that belongs to him, more than
anyone else, where his life or liberty can be held critically in balance. A public trial
aims to ensure that he is fairly dealt with and would not be unjustly condemned and
that his rights are not compromised in secrete conclaves of long ago. A public trial is
not synonymous with publicized trial; it only implies that the court doors must be open
to those who wish to come, sit in the available seats, conduct themselves with
decorum and observe the trial process. In the constitutional sense, a courtroom should
have enough facilities for a reasonable number of the public to observe the
proceedings, not too small as to render the openness negligible and not too large as
to distract the trial participants from their proper functions, who shall then be totally
free to report what they have observed during the proceedings.
16

The courts recognize the constitutionally embodied freedom of the press and the right
to public information. It also approves of media's exalted power to provide the most
accurate and comprehensive means of conveying the proceedings to the public and in
acquainting the public with the judicial process in action; nevertheless, within the
courthouse, the overriding consideration is still the paramount right of the accused to
due process
17
which must never be allowed to suffer diminution in its constitutional
proportions. Justice Clark thusly pronounced, "while a maximum freedom must be
allowed the press in carrying out the important function of informing the public in a
democratic society, its exercise must necessarily be subject to the maintenance
of absolute fairness in the judicial process."
18

This Court, in the instance
19
already mentioned, citing Estes vs. Texas,
20
the United
States Supreme Court holding the television coverage of judicial proceedings as an
inherent denial of due process rights of an accused, also identified the following as
being likely prejudices:
"1. The potential impact of television x x x is perhaps of the greatest
significance. x x x. From the moment the trial judge announces that a case
will be televised it becomes a cause celebre. The whole community, x x x
becomes interested in all the morbid details surrounding it. The approaching
trial immediately assumes an important status in the public press and the
accused is highly publicized along with the offense with which he is charged.
Every juror carries with him into the jury box these solemn facts and thus
increases the chance of prejudice that is present in every criminal case. x x x.
"2. The quality of the testimony in criminal trials will often be impaired. The
impact upon a witness of the knowledge that he is being viewed by a vast
audience is Simply incalculable. Some may be demoralized and frightened,
some cocky and given to overstatement; memories may falter, as with
anyone speaking publicly, and accuracy of statement may be severely
undermined. x x x. Indeed, the mere fact that the trial is to be televised might
render witnesses reluctant to appear and thereby impede the trial as well as
the discovery of the truth.
"3. A major aspect of the problem is the additional responsibilities the
presence of television places on the trial judge. His job is to make certain that
the accused receives a fair trial. This most difficult task requires his undivided
attention. x x x
"4. Finally, we cannot ignore the impact of courtroom television on the
defendant. Its presence is a form of mental if not physical-harassment,
resembling a police line-up or the third degree. The inevitable close-up of his
gestures and expressions during the ordeal of his trial might well transgress
his personal sensibilities, his dignity, and his ability to concentrate on the
proceedings before him -sometimes the difference between life and death -
dispassionately, freely and without the distraction of wide public surveillance.
A defendant on trial for a specific crime is entitled to his day in court, not in a
stadium, or a city or nationwide arena. The heightened public clamor
resulting from radio and television coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and
radio coverage could have mischievous potentialities for intruding upon the detached
atmosphere that should always surround the judicial process.
21

The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its
own concern on the live television and radio coverage of the criminal trials of Mr.
Estrada; to paraphrase: Live television and radio coverage can negate the rule on
exclusion of witnesses during the hearings intended to assure a fair trial; at stake in
the criminal trial is not only the life and liberty of the accused but the very credibility of
the Philippine criminal justice system, and live television and radio coverage of the trial
could allow the "hooting throng" to arrogate unto themselves the task of judging the
guilt of the accused, such that the verdict of the court will be acceptable only if
popular; and live television and radio coverage of the trial will not subserve the ends of
justice but will only pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted
delays in the prosecution of cases before trial courts brought about by petitions
seeking a declaration of mistrial on account of undue publicity and assailing a court
a quo's action either allowing or disallowing live media coverage of the court
proceedings because of supposed abuse of discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the case law on
the matter. Just to the contrary, the Court effectively reiterated its standing resolution
of 23 October 1991. Until 1991, the Court had yet to establish the case law on the
matter, and when it did in its 23
rd
October resolution, it confirmed, in disallowing live
television and radio coverage of court proceedings, that "the records of the
Constitutional Commission (were) bereft of discussion regarding the subject of
cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the
opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion really
in point?
In Nebraska Press Association vs, Stewart,
22
the Nebraska State trial judge issued
an order restraining news media from publishing accounts of confession or admissions
made by the accused or facts strongly implicating him. The order was struck down.
In Richmond Newspaper; Inc., vs, Virginia,
23
the trial judge closed the courtroom to
the public and all participants except witnesses when they testify. The judge was
reversed by the U.S. Supreme Court which ruled that criminal trials were historically
open. In Globe Newspaper vs. Superior Court,
24
the US Supreme Court voided a
Massachusetts law that required trial judges to exclude the press and the public from
the courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Steward, in Chandler vs. Florida,
25
where two police officers charged with
burglary sought to overturn their conviction before the US Supreme Court upon the
ground that the television coverage had infringed their right to fair trial, explained that
"the constitutional violation perceived by the Estes Court did not stem from the
physical disruption that might one day disappear with technological advances in the
television equipment but inhered, rather, in the hypothesis that the mere presence of
cameras and recording devices might have an effect on the trial participants
prejudicial to the accused."
26

Parenthetically, the United States Supreme Court and other federal courts do not
allow live television and radio coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so
involving as they do a former President of the Republic. It is undeniable that these
cases have twice become the nation's focal points in the two conflicting phenomena of
EDSA II and EDSA III where the magnitude of the events has left a still divided nation.
Must these events be invited anew and risk the relative stability that has thus far been
achieved? The transcendental events in our midst do not allow us to turn a blind eye
to yet another possible extraordinary case of mass action being allowed to now creep
into even the business of the courts in the dispensation of justice under a rule of law.
At the very least, a change in the standing rule of the court contained in its resolution
of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in
any sense which, instead, are tasked to only adjudicate justiciable controversies on
the basis of what alone is submitted before them.
27
A trial is not a free trade of ideas,
Nor is a competing market of thoughts the known test of truth in a courtroom.
28

The Court is not all that umnindful of recent technological and scientific advances but
to chance forthwith the life or liberty of any person in a hasty bid to use and apply
them, even before ample safety nets are provided and the concerns heretofore
expressed are aptly addressed, is a price too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.1wphi1.nt


























Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12990 January 21, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
LAZARO JAVIER, ET AL., defendants-appellants.
Modesto Castillo, Eusebio Lopez and G. N. Trinidad for appellants.
Acting Attorney-General Paredes for appellee.
MALCOLM, J .:
We find the proven facts as brought out in the trial of this case to be as follows:
Doroteo Natividad on the afternoon of October 22, 1915, fastened his carabao valued
at P150 in his corral situated in the barrio of Trapiche municipality of Tanauan,
Province of Batangas. On the following morning when he went to look after the animal,
he found the gate to the corral open and that the carabao had disappeared. He
reported the matter to the Constabulary, and a patrol of the Constabulary under the
leadership of sergeant Presa, now deceased, on the 20th of November following,
encountered the accused Lazaro Javier, Apolinario Mendoza, and Placido de Chavez
leading the carabao. When the ladrones saw the Constabulary, that scattered in all
directions. On the following day, the Constabulary found this carabao tied in front of
the house of one Pedro Monterola in the barrio of Santa Clara, municipality of San
Pablo. The carabao was identified by Doroteo Natividad as the one which had been
taken from his corral on the night of October 22, 1915, and by the Constabulary as the
one seen in the possession of the accused.
As corroborative of such evidence, we have the well-known legal principle, which as
applied to cases of this character is that, although the persons who unlawfully took a
certain carabao are not recognized at the time, and their identity remains entirely
unknown, nevertheless, if the stolen animal is found in the possession of the accused
shortly after the commission of the crime and they make no satisfactory explanation of
such possession they may be properly convicted of the crime. (See U. S. vs. Divino
[1911], 18 Phil., 425.) In the present instance, the attempt of the accused to insinuate
that one of the Constabulary soldiers testified against them falsely because of enmity
is hardly believable.
The foregoing statement of the facts and the law disposes of all but one assignment of
error, namely, that the lower court erred in admitting Exhibit B of the prosecution as
evidence. Exhibit B is the sworn statement of sergeant Presa, now deceased, whose
signature was identified, before the justice of the peace of the municipality of Santo
Tomas, Province of Batangas. Appellant's argument is predicated on the provision of
the Philippine Bill of Rights which says, "That in all criminal prosecutions the accused
shall enjoy the right . . . to meet the witnesses face to face," and the provision of the
Code of Criminal Procedure, section 15 (5), which says that "In all criminal
prosecutions the defendant shall be entitled: . . . to be confronted at the trial by and to
cross-examine the witnesses against him." With reference to the clause of the Bill of
Rights, which we have quoted, Justice Day said in a case of the Philippine origin
(Dowdell vs. U. S. [1911], 221 U. S., 325) that it "intends to secure the accused in the
right to be tried, so far as facts provable by witnesses are concerned, by only such
witnesses as meet him face to face at the trial, who give their testimony in his
presence, and give to the accused an opportunity of cross-examination. It was
intended to prevent the conviction of the accused upon deposition or ex parte
affidavits, and particularly to preserve the right of the accused to test the recollection
of the witness in the exercise of the right of cross-examination." In other words,
confrontation is essential because cross-examination is essential. A second reason for
the prohibition is that a tribunal may have before it the department and appearance of
the witness while testifying. ( U. S. vs. Anastacio [1906], 6 Phil., 413.) The Supreme
Court of the Philippine Islands has applied this constitutional provisions on behalf of
accused persons in a number of cases. (See for example U. S. vs. Tamjuanco [1902],
1 Phil., 374; U. S. vs. Bello [1908], 11 Phil., 526; U. S. vs. De la Cruz [1908], 12 Phil.,
87.) It is for us now to determine whether the present facts entitle the accused to the
protection of the Bill of Rights or whether the facts fall under some exception thereto.
The sworn statement of Presa was not made by question and answer under
circumstances which gave the defense an opportunity to cross-examine the witness.
The proviso of the Code of Criminal Procedure as to confrontation is therefore
inapplicable. Presa's statement again is not the testimony of a witness deceased,
given in a former action between the same parties relating to the same matter.
Consequently, the exception provided by section 298, No. 8, of the Code of Civil
Procedure and relied upon by the prosecution in the lower court is also inapplicable.
Nor is the statement of Presa a dying declaration or a deposition in a former trial or
shown to be a part of the preliminary examination. Under these circumstances, not to
burden the opinion with an extensive citation of authorities, we can rely on the old and
historic case of R. vs. Paine (1 Salk., 281 [King's Bench Div.]) occurring in the year
1696. It appears that a deposition of B., examined by the Mayor of Bristol under oath,
but not in P's presence, was offered. It was objected that B, being dead, the defendant
had lost all opportunity of cross-examining him. The King's Bench consulted with the
Common Pleas, and "it was the opinion of both courts that these deposition should not
be given in evidence, the defendant not being present when they were taken before
the Mayor and so had lost the benefit of a cross-examination." Although we are faced
with the alternative of being unable to utilize the statements of the witness now
deceased, yet if there has been no opportunity for cross-examination and the case is
not one coming within one of the exceptions, the mere necessity alone accepting the
statement will not suffice. In fine, Exhibit B was improperly received in evidence in the
lower court.
With such a resolution of this question, we could, as has been done in other cases,
further find this to be reversible error and remand the case for a new trial. We are
convinced, however, that this would gain the accused nothing except delay for the
testimony of the owner of the carabao and of the two Constabulary soldiers, rebutted
by no reasonable evidence on behalf of the accused, is deemed sufficient to prove
guilt beyond a reasonable doubt.
The facts come under article 518, No. 3, in connection with article 520, as amended,
of the Penal Code. Accordingly the defendants and appellants are each sentenced to
four years, two months, and one day of presidio correccional, with the accessory
penalties provided by law, and to pay one-third part of costs of both instances; the
carabao shall be returned to Doroteo Natividad, if this has not already been done. So
ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, and Avancea, JJ., concur.







































Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.

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

The filing of this suit for mandamus with alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was due to the fact that as of that date,
petitioner had not been informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer of respondent Mayor
was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro.
5
It
turned out that on October 19, such permit was denied. Petitioner was unaware of
such a fact as the denial was sent by ordinary mail. The reason for refusing a permit
was due to police intelligence reports which strongly militate against the advisability of
issuing such permit at this time and at the place applied for."
6
To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations
where a large number of people is expected to attend."
7
Respondent Mayor
suggested, however, in accordance with the recommendation of the police authorities,
that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any
other enclosed area where the safety of the participants themselves and the general
public may be ensured."
8

The oral argument was heard on October 25, 1983, the very same day the answer
was filed. The Court then deliberated on the matter. That same afternoon, a minute
resolution was issued by the Court granting the mandatory injunction prayed for on the
ground that there was no showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the ground that the holding
of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion."
9
Hence this detailed exposition of the
Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly, arising from the denial of a permit. The
Constitution is quite explicit: "No law shall be passed abridging the freedom of speech,
or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances."
10
Free speech, like free press, may be
Identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment.
11
There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits,
12
prosecution for
sedition,
13
or action for damages,
14
or contempt proceedings
15
unless there be a
clear and present danger of a substantive evil that [the State] has a right to
prevent."
16
Freedom of assembly connotes the right people to meet peaceably for
consultation and discussion of matters Of public concern.
17
It is entitled to be
accorded the utmost deference and respect. It is hot to be limited, much less denied,
except on a showing, as 's the case with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right to prevent.
18
Even prior to the
1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free
speech.
19
To paraphrase opinion of Justice Rutledge speaking for the majority of
the American Supreme Court Thomas v. Collins,
20
it was not by accident or
coincidence that the right to freedom of speech and of the press were toupled in a
single guarantee with the and to petition the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these rights,
while not Identical, are inseparable. the every case, therefo re there is a limitation
placed on the exercise of this right, the judiciary is called upon to examine the effects
of the challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to public safety,
public morals, public health, or any other legitimate public interest.
21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter:
"It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining access to the mind. It was in order to
avert force and explosions due to restrictions upon rational modes of communication
that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part
of an instrument of force. Such utterance was not meant to be sheltered by the
Constitution."
22
What was rightfully stressed is the abandonment of reason, the
utterance, whether verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent. The Constitution frowns on disorder
or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado:
23
"It is
rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers."
24
It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied
by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger
of a substantive evil, on the choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed in the plurality opinion, of
1939 vintage, of Justice Roberts in Hague v. CIO:
25
Whenever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions may be regulated
in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace
and good order; but it must not, in the guise of regulation, be abridged or
denied.
26
The above excerpt was quoted with approval in Primicias v.
Fugoso.
27
Primicias made explicit what was implicit in Municipality of Cavite v.
Rojas,"
28
a 1915 decision, where this Court categorically affirmed that plazas or parks
and streets are outside the commerce of man and thus nullified a contract that leased
Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use,"
29
which certainly is not the only purpose that it could
serve. To repeat, there can be no valid reason why a permit should not be granted for
the or oposed march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the
US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has
resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: "Our conclusion finds support in the decision in the
case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute
of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special license
therefor shall first be explained from the selectmen of the town or from licensing
committee,' was construed by the Supreme Court of New Hampshire as not conferring
upon the licensing board unfettered discretion to refuse to grant the license, and held
valid. And the Supreme Court of the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a
statute requiring persons using the public streets for a parade or procession to procure
a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in
the issuance of licenses, to a consideration of the time, place, and manner of the
parade or procession, with a view to conserving the public convenience and of
affording an opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license, ... "
30
Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately depend. The control of
travel on the streets of cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is designed to
promote the public convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances would be entitled
to protection."
31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no
question, as noted, would have arisen. So, too, if the march would end at another
park. As previously mentioned though, there would be a short program upon reaching
the public space between the two gates of the United States Embassy at Roxas
Boulevard. That would be followed by the handing over of a petition based on the
resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines
is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It
was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of
ratification was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15. As of
that date then, it was binding on the Philippines. The second paragraph of the Article
22 reads: "2. The receiving State is under a special duty to take appropriate steps to
protect the premises of the mission against any intrusion or damage and to prevent
any disturbance of the peace of the mission or impairment of its dignity. "
32
The
Constitution "adopts the generally accepted principles of international law as part of
the law of the land. ..."
33
To the extent that the Vienna Convention is a restatement of
the generally accepted principles of international law, it should be a part of the law of
the land.
34
That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal
point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No.
7295 of the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Unless the ordinance is nullified, or declared ultra
vires, its invocation as a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and peaceable assembly.
Even if shown then to be applicable, that question the confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation,
the judgment must be confined within the limits of previous decisions. The law
declared on past occasions is, on the whole, a safe guide, So it has been here.
Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued
the minute resolution granting the mandatory injunction allowing the proposed march
and rally scheduled for the next day. That conclusion was inevitable ill the absence of
a clear and present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of tree speech
and peaceable assembly. These rights are assured by our Constitution and the
Universal Declaration of Human Rights.
35
The participants to such assembly,
composed primarily of those in attendance at the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases would
start from the Luneta. proceeding through Roxas Boulevard to the gates of the United
States Embassy located at the same street. To repeat, it is settled law that as to public
places, especially so as to parks and streets, there is freedom of access. Nor is their
use dependent on who is the applicant for the permit, whether an individual or a
group. If it were, then the freedom of access becomes discriminatory access, giving
rise to an equal protection question. The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The question, if the rights of free
speech and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The relations of the
speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects."
36
There could be danger to public peace and safety
if such a gathering were marked by turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties should be held accountable. It is true that
the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion.
While prudence requires that there be a realistic appraisal not of what may possibly
occur but of what mayprobably occur, given all the relevant circumstances, still the
assumption especially so where the assembly is scheduled for a specific public
place is that the permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it may be exercised in some other
place."
37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v.
Villegas
38
and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing,
39
called
for application. While the General rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of their choice, another place may
be designated by the licensing authority if it be shown that there is a clear and present
danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger
test was satisfied. The present situation is quite different. Hence the decision reached
by the Court. The mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice. Not that it should be overlooked. There was in this
case, however, the assurance of General Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that the police force is in a position to cope
with such emergency should it arise That is to comply with its duty to extend protection
to the participants of such peaceable assembly. Also from him came the
commendable admission that there were the least five previous demonstrations at the
Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where
no untoward event occurred. It was made clear by petitioner, through counsel, that no
act offensive to the dignity of the United States Mission in the Philippines would take
place and that, as mentioned at the outset of this opinion, "all the necessary steps
would be taken by it 'to ensure a peaceful march and rally.' "
40
Assistant Solicitor
General Montenegro expressed the view that the presence of policemen may in itself
be a provocation. It is a sufficient answer that they should stay at a discreet distance,
but ever ready and alert to cope with any contingency. There is no need to repeat
what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of
the city authorities to provide the proper police protection to those exercising their right
to peaceable assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform
the licensing authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one entitled to its
legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, even more so than
on the other departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that of Navarro v. Villegas, that
case is pro tanto modified. So it was made clear in the original resolution of October
25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the
City of Manila prohibiting the holding or staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign mission or chancery and for other
purposes. It is to be admitted that it finds support In the previously quoted Article 22 of
the Vienna Convention on Diplomatic Relations. There was no showing, however, that
the distance between the chancery and the embassy gate is less than 500 feet. Even
if it could be shown that such a condition is satisfied. it does not follow that respondent
Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application
of such ordinance to the exercise of the right of peaceable assembly presents itself.
As in this case there was no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly cannot be summarily brushed
aside. The high estate accorded the rights to free speech and peaceable assembly
demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the
modification of the permit sought and order the respondent official, to grant it.
Nonetheless, as there was urgency in this case, the proposed march and rally being
scheduled for the next day after the hearing, this Court. in the exercise of its conceded
authority, granted the mandatory injunction in the resolution of October 25, 1983. It
may be noted that the peaceful character of the peace march and rally on October 26
was not marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national government
and the citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ.,
concur.
De Castro, J, is on leave.






























Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 109920 August 31, 2000
CEFERINO A. SORIANO, petitioner,
vs.
HON. ADORACION C. ANGELES, in her capacity as Presiding Judge of the
Caloocan City, Regional Trial Court, Branch CXXI, and RUEL
GARCIA, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to annul the decision rendered by the Regional Trial
Court, Branch 121, Caloocan City, on March 15, 1993 in Criminal Case No. C-40740
which acquitted private respondent Ruel Garcia of direct assault.
The prosecutions evidence was as follows: Private respondent Ruel Garcia and his
uncle, Pedro Garcia, were members of the Caloocan police. Shortly after midnight on
November 7, 1991, they barged into the barangay hall of Barangay 56, Zone 5 in
Caloocan City, looking for petitioner Ceferino A. Soriano, the barangay captain.
Private respondent gave petitioner fist blows on the face four times with his left hand,
while he poked a gun at him with his right hand, at the same time cursing him, "Putang
ina mo cabeza" ("You son of a bitch chief"). Although there were four
barangay tanods (Manuel Montoya, Arturo del Rosario, Ramiro Samson, and
Francisco Raton) in the barangay hall, they could not come to the aid of petitioner
because they were held at bay by Pedro Garcia. The Garcias then left with their
companions who had been waiting outside the hall. Petitioner was treated for his
injuries in the hospital.
Private respondent denied petitioners allegations. He testified that he went to the
barangay hall in the evening of November 6, 1991 because his younger brother had
been reportedly arrested and beaten up by petitioner. (It appears that the younger
Garcia was involved in a brawl with Dennis Mones and a certain Ocampo. They were
arrested and taken to the barangay hall. One of the boys, who was apparently drunk,
vomitted while their names were recorded. Petitioner, therefore, ordered the three
boys to be taken to the Ospital ng Kalookan for a check-up.) As private respondent
saw petitioner near the door of the barangay hall, he asked for the whereabouts of his
brother and the reason for the latters arrest. Apparently thinking that private
respondent was trying to intervene in the case he was investigating, petitioner angrily
told private respondent to lay off: "Walang pulis pulis dito" ("Your being a policeman
doesnt pull strings here"). When private respondent insisted on going inside the
barangay hall, petitioner blocked him and then pushed him on the chest. Private
respondent also pushed petitioner, causing him to fall on a pile of nightsticks and
injure himself. All the time, private respondent claimed he had his gun tucked at his
waist. Private respondents uncle, Pedro Garcia, then arrived and took him home.
In acquitting private respondent, respondent Judge Adoracion C. Angeles found it
incredible that petitioner did not resist or even say anything when private respondent
allegedly assaulted him and that none of the four barangaytanods who were near him
came to his aid. She thought that if petitioner had indeed been attacked, he would
have suffered more serious injuries than a contusion on the forehead, erythema on the
chest, and a lacerated wound on the lower lip. Respondent judge also excluded from
the evidence the testimonies of petitioner and barangay tanodManuel Montoya on the
ground that their testimonies had not been formally offered in evidence as required by
Rule 132, 34 to 35 of the Revised Rules on Evidence.
Hence this petition for certiorari. Petitioner alleges that the decision is void because it
was not rendered by an impartial tribunal. He contends that respondent judge was
"hell-bent on saving the private respondent from conviction and had pre-judged the
case" as shown by the fact that (1) on August 26, 1992, before private respondents
arraignment, she called the parties and their counsels to her chambers and urged
them to settle the case, and, when petitioner refused, she did not set the case for
hearing until after three weeks allegedly to provide a "cooling off" period; (2) that at the
initial trial on September 15 and 16, 1992, respondent judge again called on the
parties to settle the case. Petitioner alleges that, while respondent judge stated in her
order of September 15, 1992 cancelling the hearing on that date that this was done to
enable Atty. Maria Lelibet Sampaga to study the case as she had been appointed as
private respondents counsel only on that day, the same was actually a pretext, the
real reason being to give private respondent another opportunity to persuade
petitioner to settle the case. The records in fact show that Atty. Sampaga had been
private respondents counsel at the arraignment on August 26, 1992; (3) that
respondent judge excluded the testimonies of petitioner and his witness, Manuel
Montoya, for failure of the prosecution to offer formally the same when the transcript of
stenographic notes shows this was not so and that, at any rate, the defense waived
the objection based on this ground by cross-examining petitioner and Montoya; and
(4) that respondent judge failed to find private respondent guilty despite the
testimonies of three eyewitnesses (barangay tanods Montoya, del Rosario, and
Samson). Petitioner therefore prays that a mistrial be declared and that the case be
ordered retried before another judge.
On the other hand, private respondent Ruel Garcia contends that, if at the outset,
petitioner doubted respondent judges impartiality, he should have sought her
inhibition right then and there; that it was not true respondent judge called the parties
to her chambers on August 26, 1992 as only the arraignment took place on that day;
that at said arraignment, his counsel, Atty. Emilio Bermas, was absent for which
reason respondent judge designated Atty. Maria Lelibet S. Sampaga to assist him;
that the schedule of the trial (September 15, 16, and 21, 1992) was not fixed by
respondent judge but by the clerk in charge of the matter, taking into account the
schedule of the other cases assigned to the court; that it was only on the first day of
trial on September 15, 1992 that respondent judge first talked to the parties, and, upon
learning that both were public officers, thought it proper to ask them if they were not
willing to settle their dispute, and seeing the parties and their counsels to be receptive,
she invited them to her chambers; that as petitioner later appeared to have second
thoughts and, on the other hand, as Atty. Sampaga needed time to prepare for trial,
respondent judge postponed the trial to the next day, September 16, 1992; that on
September 16, 1992, respondent judge again called the parties to her chambers to
see if they had come to any agreement, but as she was told by petitioner that "for him
to withdraw his complaint against the private respondent, he must have to transfer his
residence first," thus implying that he wished the case against private respondent to
continue, respondent judge proceeded with the trial that morning.
Private respondent contends that the instant petition does not have the consent and
conformity of the public prosecutor but was instead filed by the private prosecutor who
does not have the requisite legal personality to question the decision acquitting him.
Required to comment, the Solicitor General argues that this petition should be
dismissed:
A perusal of the judgment of the trial court showed that the parties were heard
conformably to the norms of due process, evidence was presented by both parties and
duly considered, their arguments were studied, analyzed, and assessed, and
judgment was rendered in which findings of facts and conclusions of law were set
forth. These conclusions of fact or law cannot in any sense be characterized as
outrageously wrong or manifestly mistaken or whimsically or capriciously arrived at.
The worst that may perhaps be said of them is that they are fairly debatable and may
even be possibly erroneous. But they cannot be declared to have been made with
grave abuse of discretion (Bustamante vs. NLRC, 195 SCRA 1991). Clearly, there
was no mistrial in this case which would warrant the nullity of the assailed judgment.
1

The preliminary issue in this case is whether the petition should be dismissed outright
because it was filed without the intervention of the OSG as counsel for the
prosecution.
This question is not a novel one. In the case of People v. Santiago,
2
this Court held:
The question as to whether or not U.P., as the private offended party, can file this
special civil action for certiorari questioning the validity of said decision of the trial
court should be answered in the affirmative.
It is well-settled that in criminal cases where the offended party is the State, the
interest of the private complainant or the private offended party is limited to the civil
liability. Thus, in the prosecution of the offense, the complainants role is limited to that
of a witness for the prosecution. If a criminal case is dismissed by the trial court or if
there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken
only by the State through the Solicitor General. Only the Solicitor General may
represent the People of the Philippines on appeal. The private offended party or
complainant may not take such appeal. However, the said offended party or
complainant may appeal the civil aspect despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of
Court wherein it is alleged that the trial court committed a grave abuse of discretion
amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that
the petition may be filed by the person aggrieved. In such case, the aggrieved parties
are the State and the private offended party or complainant. The complainant has an
interest in the civil aspect of the case so he may file such special civil action
questioning the decision or action of the respondent court on jurisdictional grounds. In
so doing, complainant should not bring the action in the name of the People of the
Philippines. The action may be prosecuted in name of said complainant.
3

The above ruling has been reiterated in De la Rosa v. Court of Appeals
4
and Perez v.
Hagonoy Rural Bank, Inc.,
5
in which the legal personality of private complainant to file
a special civil action of certiorari questioning the dismissal by the trial court of a
criminal case has been upheld subject to the limitation that the accuseds right to
double jeopardy is not violated.
6
As explained by the Court in People v. Court of
Appeals:
7
7
A judgment rendered with grave abuse of discretion or without due process is void,
does not exist in legal contemplation, and, thus, cannot be the source of an acquittal.
However, where the petition demonstrates mere errors in judgment not amounting to
grave abuse of discretion or deprivation of due process, the writ of certioraricannot
issue. A review of the alleged errors of judgment cannot be made without trampling
upon the right of the accused against double jeopardy.
8

In short, petitioner must establish that the judgment of acquittal resulted from a mistrial
so as not to place private respondent, as accused, in double jeopardy.
In only one case has the Court categorically declared a mistrial, and that is the case
of Galman v. Sandiganbayan.
9
Petitioner would have the Court draw parallelisms
between this case and Galman where the Court nullified the judgment of acquittal of
the Sandiganbayan in Criminal Case Nos. 10010 and 10011 entitled "People of the
Philippines v. General Luther Custodio, et al."
This cases is, however, a far cry from Galman. There, it was shown that evidence was
suppressed in order to justify the acquittal of the accused. This Court held that "the
secret Malacaang conference at which the authoritarian President called together the
Presiding Justice of the Sandiganbayan [Manuel Pamaran] and Tanodbayan
[Bernardo] Fernandez and the entire prosecution panel headed by Deputy
Tanodbayan [Manuel] Herrera and told them how to handle and rig (moro-moro) the
trial and the close monitoring of the entire proceedings to assure the pre-determined
ignominious final outcome are without parallel and precedent in our annals and
jurisprudence."
10

In contrast, petitioner does not allege any such irregularity in the trial of private
respondent. He simply claims that respondent judges bias and partiality denied the
prosecution a fair and impartial trial. Why respondent judge was biased for the
defense petitioner does not say. It is noteworthy that petitioner does not even dispute
private respondents allegation that respondent judge was not personally acquainted
with him until she heard the criminal case against him.
It is pertinent at this point to cite certain principles laid down by the Court regarding the
disqualification of a judge for lack of the objectivity that due process requires. It is
settled that mere suspicion that a judge is partial to one of the parties is not enough;
there should be evidence to prove the charge.
11
Bias and prejudice cannot be
presumed, especially weighed against a judges sacred allegation under oath of office
to administer justice without respect to any person and do equal right to the poor and
the rich.
12
There must be a showing of bias and prejudice stemming from an
extrajudicial source resulting in an opinion in the merits on some basis other than what
the judge learned from his participation in the case.
13

The arguments which petitioner advances by way of proof of respondents judges
alleged bias are not persuasive.
Respondent judges efforts to have the parties arrive at an amicable settlement is not
evidence of partiality for private respondent. She could have been motivated by
factors other than a desire to clear private respondent of criminal liability, i.e., the
clearing of her court docket or, as pointed out by the OSG in its comment,
14
in setting
a good example considering that petitioner and private respondent were neighbors
occupying public offices charged with the maintenance of peace and order in the
community.
As for the allegation that the trial was not held until after three weeks to give private
respondent more time to persuade petitioner to amicably settle the case, it has been
shown that it was not respondent judge but court personnel in charge of scheduling
cases who assigned the dates of trial taking into account the court calendar. The
cancellation of the September 15, 1992 hearing, on the other hand, was made to give
private respondents counsel, Atty. Maria Lelibet Sampaga, time to study the case and
prepare for trial. Although Atty. Sampaga had once appeared in behalf of private
respondent, it was for the purpose of assisting the latter at the arraignment because
the regular counsel was absent. As new counsel, Atty. Sampaga needed to study the
case. A postponement to the next day, September 16, 1992, was not an unreasonable
request. Indeed, this did not involve resetting the case since September 16, 1992 had
been originally designated as one of the initial trial dates.
Nor is there any showing that respondent judge decided the criminal case on grounds
other than its merits. A reading of her decision acquitting private respondent shows
that the same was made on the basis of her evaluation of the evidence of the
prosecution and of the defense. Because of the conflicting versions of the parties as to
what really happened, her decision was necessarily based on her appreciation of the
credibility of the witnesses for the prosecution and the defense.
True, petitioner is correct in his argument that respondent judge mistakenly excluded
from the evidence his testimony as well as that of prosecution witness Manuel
Montoya on the ground that the same had not been formally offered at the time they
were called to the witness stand. For the fact was that petitioner and Montoya had
been cross-examined at length by the defense and, therefore, the latter had waived
objection to the failure of the prosecution to make an offer of the evidence.
15
It has
been held in Go v. Court of Appeals,
16
however, that divergence of opinion between
the trial judge and a partys counsel as to the admissibility of evidence is not proof of
bias or partiality. Besides, though respondent judge stated in her decision that the
testimonies of petitioner and Montoya "cannot be considered by this Court as
constituting part of the evidence for the prosecution," her decision shows that she
actually considered the testimonies in piecing together the prosecutions version of the
events and in evaluating the evidence in the case. The testimonies of petitioner and
Montoya were after all referred to by the other witnesses for the prosecution, namely,
del Rosario and Samson. Thus respondent judges decision reads in pertinent part:
The allegation of the private complainant that he neither resisted the punches of the
accused nor said anything to the latter is quite hard to believe. No rational man would
allow another to hurt him without offering any form of resistance, for he is instinctively
concerned [with] his self-preservation. It is more in consonance with human nature
that when one is hurt, especially if the feeling of innocence is within him, to
immediately retaliate to an unjust act.
Another equally unbelievable allegation is that the four barangay tanods just stood and
watched their barangay captain while he was being mauled. There were four of them
inside the hall yet no one even dared to defend herein private complainant or stop
herein accused. If they could not do it for their barangay captain and inside their hall,
how can they be expected to protect the residents of their barangay outside their hall?
Furthermore, if herein private complainant was indeed mauled, he should have
suffered a lot more serious injuries than he alleged[ly] incurred. Considering their
allegation that the barangay tanods were guarded at the point of a gun by Pedro
Garcia, herein accused thus had all the time and opportunity to inflict on the private
complainant as many serious injuries as he could. But the results of the medical
examination belie this point.
Well-settled is the rule that the prosecution must rely on the strength of its own
evidence and not on the weakness of the defense (People vs. Dennis Mendoza, 203
SCRA 148, G.R. No. 85176, October 21, 1991). After a thorough examination of the
pieces of evidence presented by the prosecution, the latter failed to fulfill the test of
moral certainty and establish such degree of proof necessary to support conviction. "If
the inculpatory facts and circumstances are capable of one or more explanations, one
of which is consistent with innocence and the other consistent with his guilt, then the
evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction. The constitutional presumption of innocence stands until overthrown by
strong and convincing evidence, one of which will prove guilt beyond reasonable
doubt" (People vs. Gina Sahagun, 182 SCRA 91, G.R. No. 62024, February 12,
1990).
The testimonies of the prosecution witnesses are merely unfounded accusations
insufficient to gain conviction. In the case of People vs. Guinto, 184 SCRA 287, G.R.
88400, April 6, 1990, the Supreme Court held: "Accusation is not synonymous with
guilt. The accused is protected by the constitutional presumption of innocence which
the prosecution must overcome with contrary proof beyond reasonable doubt. Even if
the defense is weak, the case against the accused must fail if the prosecution is even
weaker. . . . If the prosecution has not sufficiently established the guilt of the accused,
he has a right to be acquitted and released even if he presents naught a shred of
evidence."
17

That respondent judge believed the evidence of the defense more than that of the
prosecution does not indicate that she was biased. She must have simply found the
defense witnesses to be more credible.
18

Indeed, no grave abuse of discretion may be attributed to a court simply because of its
alleged misappreciation of facts and evidence. A writ of certiorari cannot be used to
correct a lower tribunals evaluation of the evidence and factual findings. Thus,
in People v. Court of Appeals,
19
the Court dismissed a petition for certiorari filed by the
prosecution from a decision of the Court of Appeals reversing that of the trial court and
acquitting the accused of homicide and serious physical injuries on the ground that he
acted in self-defense. The Court held:
To show grave abuse of discretion, herein petitioner contends that Respondent Court
of Appeals committed manifest bias and partiality in rendering the assailed Decision. It
claims that Respondent Court ignored and discarded "uncontroverted physical
evidence" which the trial judge had relied upon. Furthermore, it allegedly erred in
finding that he had "base[d] his decision on the testimony of witnesses whose
demeanor he did not personally witness." In addition, it supposedly harped on
insignificant inconsistencies in the testimonies of some prosecution witnesses, while
unquestioningly accepting the private respondents claim of self-defense.
Finally, the solicitor general maintains that the assailed Decision (1) failed to discuss
the effect of Maquilings escape from confinement during the pendency of the case;
(2) shifted the burden of proof on the prosecution to prove Maquilings guilt, although
he admitted killing the victim in self-defense; (3) ignored the physical evidence
particularly the downward trajectory of the bullets that had hit the two victims, thereby
showing that private respondent was still standing when he shot them; and the
shotgun wound sustained by private respondent, which disabled him and rendered
him incapable of shooting the victims.
It is quite obvious from the foregoing allegations that petitioner imputed grave abuse of
discretion to Respondent Court because of the latters supposed misappreciation and
wrongful assessment of factual evidence. However, as earlier stressed, the present
recourse is a petition for certiorari under Rule 65. It is a fundamental aphorism in law
that a review of facts and evidence is not the province of the extraordinary remedy
of certiorari; which is extra ordinem beyond the ambit of appeal. Stated elsewise,
factual matters cannot normally be inquired into by the Supreme Court in
a certiorari proceeding. This Court cannot be tasked to go over the proofs presented
by the parties and analyze, assess and weigh them again, in order to ascertain if the
trial and the appellate courts were correct in according superior credit to this or that
piece of evidence of one party or the other.
The mere fact that a court erroneously decides a case does not necessarily deprive it
of jurisdiction.1wphi1 Thus, assuming arguendo that a court commits a mistake in its
judgment, the error does not vitiate the decision, considering that it has jurisdiction
over the case.
An examination of the 65-page Decision rendered by the Court of Appeals shows no
patent and gross error amounting to grave abuse of discretion. Neither does it show
an arbitrary or despotic exercise of power arising from passion or hostility. . . .
20

Finally, petitioners claim that respondent judge was biased is belied by his failure to
move for respondent judges inhibition. Petitioners claim that he did not do so
because of his "belief and desire for said respondent judge to finally return to her
normal sense of fairness" is a feeble excuse. His failure to file such motion stands as
one more stark difference between this case and Galman since the private
prosecutors in the latter case lost no time in seeking the disqualification of the
members of the Sandiganbayan on grounds of manifest bias and partiality for the
defense.
21

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.













Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
R E S O L U T I O N
PUNO, J .:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad
Escritor once again stands before the Court invoking her religious freedom and her
Jehovah God in a bid to save her family united without the benefit of legal marriage -
and livelihood. The State, on the other hand, seeks to wield its power to regulate her
behavior and protect its interest in marriage and family and the integrity of the courts
where respondent is an employee. How the Court will tilt the scales of justice in the
case at bar will decide not only the fate of respondent Escritor but of other believers
coming to Court bearing grievances on their free exercise of religion. This case comes
to us from our remand to the Office of the Court Administrator on August 4, 2003.
1

I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada
requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a
child within this live-in arrangement. Estrada believes that Escritor is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her
act.
2
Consequently, respondent was charged with committing "disgraceful and
immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code.
3

Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998.
4
She admitted that she started
living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years
ago when her husband was still alive but living with another woman. She also
admitted that she and Quilapio have a son.
5
But as a member of the religious sect
known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society,
respondent asserted that their conjugal arrangement is in conformity with their
religious beliefs and has the approval of her congregation.
6
In fact, after ten years of
living together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."
7

For Jehovahs Witnesses, the Declaration allows members of the congregation who
have been abandoned by their spouses to enter into marital relations. The Declaration
thus makes the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed. As laid out by the tenets of their
faith, the Jehovahs congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities approval of the marital
relationship because of legal impediments. Only couples who have been baptized and
in good standing may execute the Declaration, which requires the approval of the
elders of the congregation. As a matter of practice, the marital status of the declarants
and their respective spouses commission of adultery are investigated before the
declarations are executed.
8
Escritor and Quilapios declarations were executed in the
usual and approved form prescribed by the Jehovahs Witnesses,
9
approved by elders
of the congregation where the declarations were executed,
10
and recorded in the
Watch Tower Central Office.
11

Moreover, the Jehovahs congregation believes that once all legal impediments for the
couple are lifted, the validity of the declarations ceases, and the couple should legalize
their union. In Escritors case, although she was widowed in 1998, thereby lifting the
legal impediment to marry on her part, her mate was still not capacitated to remarry.
Thus, their declarations remained valid.
12
In sum, therefore, insofar as the
congregation is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in the
congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in
asserting that her conjugal arrangement does not constitute disgraceful and immoral
conduct for which she should be held administratively liable,
13
the Court had to
determine the contours of religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins
and development of the religion clauses in the United States (U.S.) and the
Philippines, we held that in resolving claims involving religious freedom (1) benevolent
neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the religion clauses in our Constitution; and (2) in deciding
respondents plea of exemption based on the Free Exercise Clause (from the law with
which she is administratively charged), it is the compelling state interest test, the
strictest test, which must be applied.
14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on
the ultimate issue of whether respondent was to be held administratively liable for
there was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus,
in the decision dated August 4, 2003, we remanded the complaint to the Office of the
Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondents claimed religious
belief and practice;
(b) present evidence on the states "compelling interest" to override
respondents religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom.
15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO
WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS
OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already
been ruled upon prior to the remand, and constitute "the law of the case" insofar as
they resolved the issues of which framework and test are to be applied in this case,
and no motion for its reconsideration having been filed.
16
The only task that the Court
is left to do is to determine whether the evidence adduced by the State proves its
more compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years ago,
is misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has
attained finality and constitutes the law of the case. Any attempt to reopen this final
ruling constitutes a crass contravention of elementary rules of procedure. Worse,
insofar as it would overturn the parties right to rely upon our interpretation which has
long attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive
infirmities in Mr. Justice Carpios belated attempts to disturb settled issues, and that
he had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because "one cannot understand, much less
intelligently criticize the approaches of the courts and the political branches to religious
freedom in the recent past in the United States without a deep appreciation of the
roots of these controversies in the ancient and medieval world and in the American
experience."
17
We delved into the conception of religion from primitive times, when it
started out as the state
itself, when the authority and power of the state were ascribed to God.
18
Then, religion
developed on its own and became superior to the state,
19
its subordinate,
20
and even
becoming an engine of state policy.
21

We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the
Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in
exchange for the favors and mundane benefits conferred by ambitious princes and
emperors in exchange for religions invaluable service. This was the context in which
the unique experiment of the principle of religious freedom and separation of church
and state saw its birth in American constitution












Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC.,petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF,
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL
SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P.
Arroyo, Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J .:
Assailed in this petition for certiorari prohibition and mandamus with preliminary
mandatory and prohibitory injunction is the validity of two [2] search warrants issued
on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the
then Court of First Instance of Rizal [Quezon City], under which the premises known
as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We
Forum" newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the printing,
publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and
control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper,
were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction
be issued for the return of the seized articles, and that respondents, "particularly the
Chief Legal Officer, Presidential Security Command, the Judge Advocate General,
AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns,
subordinates, substitute or successors" be enjoined from using the articles thus seized
as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal
Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v.
Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor
General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners'
prayer for a writ of preliminary mandatory injunction, manifested that respondents "will
not use the aforementioned articles as evidence in the aforementioned case until final
resolution of the legality of the seizure of the aforementioned articles. ..."
2
With this
manifestation, the prayer for preliminary prohibitory injunction was rendered moot and
academic.
Respondents would have this Court dismiss the petition on the ground that petitioners
had come to this Court without having previously sought the quashal of the search
warrants before respondent judge. Indeed, petitioners, before impugning the validity of
the warrants before this Court, should have filed a motion to quash said warrants in
the court that issued them.
3
But this procedural flaw notwithstanding, we take
cognizance of this petition in view of the seriousness and urgency of the constitutional
issues raised not to mention the public interest generated by the search of the "We
Forum" offices, which was televised in Channel 7 and widely publicized in all
metropolitan dailies. The existence of this special circumstance justifies this Court to
exercise its inherent power to suspend its rules. In the words of the revered Mr.
Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo,
4
"it is always
in the power of the court [Supreme Court] to suspend its rules or to except a particular
case from its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable
stress is laid on the fact that while said search warrants were issued on December 7,
1982, the instant petition impugning the same was filed only on June 16, 1983 or after
the lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to
do that which, by exercising due diligence, could or should have been done earlier. It
is negligence or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to
assert it.
5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing
of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p.
3, Manifestation] with the fact that the Petition was filed on June 16,
1983, more than half a year after the petitioners' premises had been
raided.
The climate of the times has given petitioners no other choice. If
they had waited this long to bring their case to court, it was because
they tried at first to exhaust other remedies. The events of the past
eleven fill years had taught them that everything in this country, from
release of public funds to release of detained persons from custody,
has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of
persons close to the President, like Fiscal Flaminiano, sent a letter
to President Marcos, through counsel Antonio Coronet asking the
return at least of the printing equipment and vehicles. And after such
a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security
Command, they were further encouraged to hope that the latter
would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to
come to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system,
We find no ground to punish or chastise them for an error in judgment. On the
contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the
presumption that they had abandoned their right to the possession of the seized
property, thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used
and marked as evidence some of the seized documents in Criminal Case No. Q-
022872, he is now estopped from challenging the validity of the search warrants. We
do not follow the logic of respondents. These documents lawfully belong to petitioner
Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds.
The fact that he has used them as evidence does not and cannot in any way affect the
validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search
warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination
under oath or affirmation of the applicant and his witnesses, as mandated by the
above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of
Court .
6
This objection, however, may properly be considered moot and academic, as
petitioners themselves conceded during the hearing on August 9, 1983, that an
examination had indeed been conducted by respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct
places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of
Search Warrant No. 20-82[b] at the latter address on the ground that the two search
warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly
keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6,
Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments and
means of committing the crime of subversion penalized under P.D.
885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search
warrants were applied for and issued because the purpose and intent were to search
two distinct premises. It would be quite absurd and illogical for respondent judge to
have issued two warrants intended for one and the same place. Besides, the
addresses of the places sought to be searched were specifically set forth in the
application, and since it was Col. Abadilla himself who headed the team which
executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which
Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building,
Quezon Avenue, Quezon City, which address appeared in the opening paragraph of
the said warrant.
7
Obviously this is the same place that respondent judge had in mind
when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be
searched with sufficient particularity, it has been held "that the executing officer's prior
knowledge as to the place intended in the warrant is relevant. This would seem to be
especially true where the executing officer is the affiant on whose affidavit the warrant
had issued, and when he knows that the judge who issued the warrant intended the
building described in the affidavit, And it has also been said that the executing officer
may look to the affidavit in the official court file to resolve an ambiguity in the warrant
as to the place to be searched."
8

3. Another ground relied upon to annul the search warrants is the fact that although
the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his
co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services,
Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that
may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant may be
issued for the search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other
proceeds or fruits of the offense; and
[c] Property used or intended to be used as the
means of committing an offense.
The above rule does not require that the property to be seized should be owned by the
person against whom the search warrant is directed. It may or may not be owned by
him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties
that may be seized is stolen property. Necessarily, stolen property must be owned by
one other than the person in whose possession it may be at the time of the search and
seizure. Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of the property
sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to
the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under
the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines,
"machinery, receptables, instruments or implements intended by the owner of the
tenement for an industry or works which may be carried on in a building or on a piece
of land and which tend directly to meet the needs of the said industry or works" are
considered immovable property. In Davao Sawmill Co. v. Castillo
9
where this legal
provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant,
but not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building
on which the machineries were placed. This being the case, the machineries in
question, while in fact bolted to the ground remain movable property susceptible to
seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application
of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.
10
The
application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under
Col. Abadilla which conducted a surveillance of the premises prior to the filing of the
application for the search warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not
have provided sufficient basis for the finding of a probable cause upon which a
warrant may validly issue in accordance with Section 3, Article IV of the 1973
Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, 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.
We find petitioners' thesis impressed with merit. Probable cause for a search is
defined as such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched. And
when the search warrant applied for is directed against a newspaper publisher or
editor in connection with the publication of subversive materials, as in the case at bar,
the application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to
publish. Mere generalization will not suffice. Thus, the broad statement in Col.
Abadilla's application that petitioner "is in possession or has in his control printing
equipment and other paraphernalia, news publications and other documents which
were used and are all continuously being used as a means of committing the offense
of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere
conclusion of law and does not satisfy the requirements of probable cause. Bereft of
such particulars as would justify a finding of the existence of probable cause, said
allegation cannot serve as basis for the issuance of a search warrant and it was a
grave error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement
contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the
evidence gathered and collated by our unit clearly shows that the premises above-
mentioned and the articles and things above-described were used and are
continuously being used for subversive activities in conspiracy with, and to promote
the objective of, illegal organizations such as the Light-a-Fire Movement, Movement
for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires no less
than personal knowledge by the complainant or his witnesses of the facts upon which
the issuance of a search warrant may be justified. In Alvarez v. Court of First
Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts
within the personal knowledge of the petitioner or his witnesses, because the purpose
thereof is to convince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable cause." As
couched, the quoted averment in said joint affidavit filed before respondent judge
hardly meets the test of sufficiency established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo
(equipment, typewriters, cabinets, tables, communications/recording
equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the "WE FORUM" newspaper and any
and all documents communication, letters and facsimile of prints
related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other
publication to promote the objectives and piurposes of the
subversive organization known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1] Toyota-Corolla, colored yellow with Plate No.
NKA 892;
2] DATSUN pick-up colored white with Plate No.
NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate
No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No.
NGV 427 with marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner,
directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant which
authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-
197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The
description of the articles sought to be seized under the search warrants in question
cannot be characterized differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in
English history: the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan Reference herein to such historical episode would not be relevant for it is
not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to
state security.
As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, 18 and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state of being
is patently anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on the
ground that they have been sequestered under Section 8 of Presidential Decree No.
885, as amended, which authorizes "the sequestration of the property of any person,
natural or artificial, engaged in subversive activities against the government and its
duly constituted authorities ... in accordance with implementing rules and regulations
as may be issued by the Secretary of National Defense." It is doubtful however, if
sequestration could validly be effected in view of the absence of any implementing
rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no
less than President Marcos himself denied the request of the military authorities to
sequester the property seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing
presses, according to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We
Forum offices in Quezon City and took a detailed inventory of the
equipment and all materials in the premises.
Cendaa said that because of the denial the newspaper and its
equipment remain at the disposal of the owners, subject to the
discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is further
confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated
February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case.
20
In this reply dated February 11,
1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the
recommendation of our authorities to close the paper's printing
facilities and confiscate the equipment and materials it uses.
21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued
by respondent judge on December 7, 1982 are hereby declared null and void and are
accordingly set aside. The prayer for a writ of mandatory injunction for the return of the
seized articles is hereby granted and all articles seized thereunder are hereby ordered
released to petitioners. No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana,
Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.

Tumey v. Ohio, 273 U.S. 510 (1927)
ERROR TO THE SUPREME COURT OF OHIO
Syllabus
1. To subject a defendant to trial in a criminal case involving his liberty or property
before a judge having a direct, personal, substantial interest in convicting him is a
denial of due process of law. P. 273 U. S. 522.
2. A system by which an inferior judge is paid for his service only when he convicts the
defendant has not become so customary in the common law or in this country that it
can be regarded as due process where the costs usually imposed are not so small as
to be within the maxim de minimis non curat lex. Pp. 273 U. S. 523, 273 U. S. 531.
Page 273 U. S. 511
3. Under statutes of Ohio, offenses against State prohibition, involving a wide range of
fines enforceable by imprisonment, may be tried without a jury, before the mayor of
any rural village situate in the county (however populous) in which offenses occur; his
judgment upon the facts is final and conclusive unless so clearly unsupported as to
indicate mistake, bias, or willful disregard of duty; the fines are divided between the
State and village; the village, by means of the fines collected, hires attorneys and
detectives to arrest alleged offenders anywhere in the county and prosecute them
before the mayor; in addition to his salary, the mayor, when he convicts, but not
otherwise, receive his fees and cost amounting to a substantial income; the fine offer a
means of adding materially to the financial prosperity of the village, for which the
mayor, in his executive capacity, is responsible. Held violative of the Fourteenth
Amendment. Pp.273 U. S. 520, 273 U. S. 531.
115 Oh.St. 701, reversed.
ERROR to a judgment of the Supreme Court of Ohio which declined to review a
judgment of the State Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of
the Court of Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.) 580, which
reversed a judgment of the Mayor of the Village of North College Hill convicting and
fining Tumey for violation of the Ohio Prohibition Act and ordering that he be
imprisoned until the fine and costs were paid.
Page 273 U. S. 514
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The question in this case is whether certain statutes of Ohio, in providing for the trial
by the mayor of a village of one accused of violating the Prohibition Act of the State,
deprive the accused of due process of law and violate the Fourteenth Amendment to
the Federal Constitution
Page 273 U. S. 515
because of the pecuniary and other interest which those statutes give the mayor in the
result of the trial.
Tumey, the plaintiff in error, hereafter to be called the defendant, was arrested and
brought before Mayor Pugh, of the Village of North College Hill, charged with
unlawfully possessing intoxicating liquor. He moved for his dismissal because of the
disqualification of the Mayor to try him, under the Fourteenth Amendment. The Mayor
denied the motion, proceeded to the trial, convicted the defendant of unlawfully
possessing intoxicating liquor within Hamilton County, as charged, fined him $100,
and ordered that he be imprisoned until the fine and costs were paid. He obtained a
bill of exceptions and carried the case on error to the Court of Common Pleas of
Hamilton County. That court heard the case and reversed the judgment on the ground
that the Mayor was disqualified, as claimed. 25 Ohio Nisi Prius (N.S.) 580. The State
sought review by the Court of Appeals of the first appellate district of Ohio, which
reversed the Common Pleas and affirmed the judgment of the Mayor. 23 Ohio Law
Reporter, 634.
On May 4, 1926, the State Supreme Court refused defendant's application to require
the Court of Appeals to certify its record in the case. The defendant then filed a
petition in error in that court as of right, asking that the judgment of the Mayor's Court
and of the Appellate Court be reversed on constitutional grounds. On May 11, 1926,
the Supreme Court adjudged that the petition be dismissed for the reason that no
debatable constitutional question was involved in the cause. The judgment was then
brought here upon a writ of error allowed by the Chief Justice of the State Supreme
Court, to which it was rightly directed. Matthews v. Huwe, Treasurer,269 U. S.
262; Hetrick v. Village of Lindsey,265 U. S. 384. This brings us to the merits of the
case.
Page 273 U. S. 516
The defendant was arrested and charged with the unlawful possession of intoxicating
liquor at White Oak, another village in Hamilton County, Ohio, on a warrant issued by
the Mayor of North College Hill. The Mayor acted under the sections of the State
Prohibition Act, and Ordinance No. 125 of the Village of North College Hill adopted in
pursuance thereof.
Section 6212-15 (Ohio General Code) provides that "No person shall after the
passage of this act manufacture possess . . . any intoxicating liquors. . . ."
Section 6212-17 provides that
". . . any person who violates the provisions of this act (General Code, Sections 6212-
13 to 6212-20) for a first offense shall be fined not less than one hundred dollars nor
more than one thousand dollars; for a second offense he shall be fined not less than
three hundred dollars nor more than two thousand dollars; for a third and each
subsequent offense he shall be fined not less than five hundred dollars nor more than
two thousand dollars and be imprisoned in the state penitentiary not less than one
year nor more than five years. . . ."
The Mayor has authority, which he exercised in this case, to order that the person
sentenced to pay a fine shall remain in prison until the fine and costs are paid. At the
time of this sentence, the prisoner received a credit of sixty cents a day for each day's
imprisonment. By a recent amendment, that credit has been increased to one dollar
and a half a day. Sections 13716, 13717, Ohio Gen.Code.
Section 62118 provides, in part, that
"Any justice of the peace, mayor, municipal or police judge, probate or common pleas
judge within the county with whom the affidavit is filed charging a violation of any of
the provisions of this act (G.C. Sections 6212-13 to 6212-20) when the offense is
alleged to have been committed in the county in which such mayor, justice of the
peace, or judge
Page 273 U. S. 517
may be sitting, shall have final jurisdiction to try such cases upon such affidavits
without a jury, unless imprisonment is a part of the penalty, but error may be
prosecuted to the judgment of such mayor, justice of the peace, or judge as herein
provided."
Error from the Mayor's Court lies to the court of Common Pleas of the County, and a
bill of exceptions is necessary to present questions arising on the evidence. Sections
10359, 10361, Ohio General Code. The appellate review in respect of evidence is
such that the judgment can only be set aside by the reviewing court on the ground that
it is so clearly unsupported by the weight of the evidence as to indicate some
misapprehension or mistake or bias on the part of the trial court, or a willful disregard
of duties. Datesh v. State, 23 Ohio Nisi Prius (N.S.) 273.
Section 6212-19 provides that
"Money arising from fines and forfeited bonds shall be paid one-half into the state
treasury credited to the general revenue fund, one-half to the treasury of the township,
municipality or county where the prosecution is held, according as to whether the
officer hearing the case is a township, municipal, or county officer."
Section 6212-37 provides that
"The council of any city or village may by ordinance authorize the use of any part of
the fines collected for the violation of any law prohibiting the manufacture and sale of
intoxicating liquors, for the purpose of hiring attorneys, detectives. or secret service
officers to secure the enforcement of such prohibition law. And such council are
hereby authorized to appropriate not more than five hundred dollars annually from the
general revenue funds for the purpose of enforcing the law prohibiting the
manufacture and sale of intoxicating liquors, when there are no funds available from
the fines collected for the violation of such prohibitory law."
Under the authority of the last section, the Village Council of North College Hill passed
Ordinance No. 125, as follows:
Page 273 U. S. 518
"An ordinance to provide for compensation to be paid from the secret service funds of
the Village of North College Hill, Hamilton County, Ohio, created by authority of
Section 62137, of the General Code of Ohio, to detectives, secret service officers,
deputy marshals' and attorneys' fees, costs, etc., for services in securing evidence
necessary to conviction and prosecuting violation of the law of the state of Ohio
prohibiting the liquor traffic."
"Be it ordained by the Council of the Village of North College Hill, Hamilton County,
Ohio:"
"Section I. That fifty percent of all moneys hereafter paid into the treasury of said
village of North College Hill, Ohio, that is one-half of the share of all fines collected
and paid into and belonging to said village of North College Hill, Ohio, received from
fines collected under any law of the state of Ohio prohibiting the liquor traffic, shall
constitute a separate fund to be called the Secret Service Fund to be used for the
purpose of securing the enforcement of any prohibition law."
"Section II. That deputy marshals of the village of North College Hill, Ohio, shall
receive as compensation for their services in securing the evidence necessary to
secure the conviction of persons violating the law of the state of Ohio, prohibiting the
liquor traffic, an amount of money equal to 15 percent. of the fine collected, and other
fees allowed by law."
"Section II. That the attorney at law of record prosecuting persons charged with
violating the law of the state of Ohio, prohibiting the liquor traffic, shall receive as
compensation for legal services an amount equal to 10 percent. of the fine collected,
in all cases, whether the plea be guilty or not guilty."
"Section IV. That detectives and secret service officers shall receive as compensation
for their services in securing the evidence necessary to secure the conviction of
Page 273 U. S. 519
persons violating the law of the state of Ohio, prohibiting the liquor traffic, an amount
of money equal to 15 percent. of the fine collected."
"Section V. That the mayor of the village of North College Hill, Ohio, shall receive or
retain the amount of his costs in each case, in addition to his regular salary, as
compensation for hearing such cases."
"Section VI. This ordinance is hereby declared to be an emergency ordinance,
necessary to the immediate preservation of the public peace and safety, made
necessary by reason of the flagrant violation of the laws of Ohio, enacted to prohibit
traffic in intoxicating liquors, and shall be in effect from and after its passage."
The duties of the Mayor of a village in Ohio are primarily executive. Sections of the
General Code of Ohio provide as follows:
"Section 4248. The executive power and authority of villages shall be vested in a
mayor, clerk, treasurer, marshal, street commissioner, and such other officers and
departments thereof as are created by law."
"Section 4255. . . . He (the Mayor) shall be the chief conservator of the peace within
the corporation. . . . He shall be the president of the council, and shall preside at all
regular and special meetings thereof, but shall have no vote except in case of a tie."
"Section 4258. . . . He shall see that all ordinances, bylaws and resolutions are
faithfully obeyed and enforced."
"Section 4259. The mayor shall communicate to council from time to time a statement
of the finances of the municipality and such other information relating thereto and to
the general condition of affairs of the municipality as he deems proper or as may be
required by council."
"Section 4262. The mayor shall supervise the conduct of all the officers of the
corporation. . . . "
Page 273 U. S. 520
The fees which the Mayor and Marshal received in this case came to them by virtue of
the general statutes of the state applying to all state cases, liquor and otherwise. The
Mayor was entitled to hold the legal fees taxed in his favor. Ohio General Code,
4270; State v. Nolte, 111 O.S. 486. Moreover, the North College Hill village council
sought to remove all doubt on this point by providing ( 5, Ord. 125, supra), that he
should receive or retain the amount of his costs in each case, in addition to his regular
salary, as compensation for hearing such cases. But no fees or costs in such cases
are paid him except by the defendant if convicted. There is, therefore, no way by
which the Mayor may be paid for his service as judge if he does not convict those who
are brought before him, nor is there any fund from which marshals, inspectors and
detectives can be paid for their services in arresting and bringing to trial and furnishing
the evidence to convict in such cases, except it be from the initial $500 which the
village may vote from its treasury to set the court going, or from a fund created by the
fines thereafter collected from convicted defendants.
By an Act of 1913 (103 O.L. 290), the Mayor's court in villages in Hamilton County and
in half a dozen other counties with large cities was deprived of jurisdiction to hear and
punish misdemeanors committed in the county beyond the limits of the corporation.
The Prohibition Act, known as the Crabbe Act, adopted in 1920 (108 O.L., Pt. 1, 388
and Pt. 2, 1182) changed this, and gave to the Mayor of every village in the State
jurisdiction within the county in which it was situate to try violations of that Act.
Counsel for the State in their brief explain the vesting by state legislatures of this
country of jurisdiction in village courts as follows:
"The purpose of extending the jurisdiction in the first instance was to break up places
of outlawry that were located on the municipal boundary just outside of the city. The
Legislature also
Page 273 U. S. 521
faced the situation that, in some of the cities the law enforcement agencies were
failing to perform their duty, and therefore, in order that those forces that believe in
enforcement and upholding of law might have some courts through which process
could be had, it gave to mayors county-wide jurisdiction."
It was further pointed out in argument that the system by which the fines to be
collected were to be divided between the State and the village was for the proper
purpose of stimulating the activities of the village officers to such due enforcement.
The Village of North College Hill in Hamilton County, Ohio, is shown by the federal
census to have a population of 1104. That of Hamilton County, including the City of
Cincinnati, is more than half a million. The evidence discloses that Mayor Pugh came
to office after ordinance No. 125 was adopted, and that there was a division of public
sentiment in the village as to whether the ordinance should continue in effect. A
petition opposing it and signed by a majority of the voters was presented to Mayor
Pugh. To this, the Mayor answered with the declaration that, if the village was in need
of finances, he was in favor of, and would carry on, "the Liquor Court," as it was
popularly called, but that, if the court was not needed for village financial reasons, he
would not do so. It appears that substantial sums were expended out of the village
treasury, from the fund made up of the fines thus collected, for village improvements
and repairs. The Mayor was the owner of a house in the village.
Between May 11, 1923 and December 31, 1923, the total amount of fines for violation
of the prohibition law, collected by this village court, was upwards of $20,000, from
which the State received $8,992.50, North College Hill received $4,471.25 for its
general uses, $2,697.25 was placed to the credit of the village safety fund, and the
balance was put in the secret service fund. Out of this, the person acting as
prosecutor in the liquor court received
Page 273 U. S. 522
in that period $1,796.50; the deputy marshals, inspectors and other employees,
including the detectives, received $2,697.75, and $438.50 was paid for cost in
transporting prisoners, serving writs and other services in connection with the trial of
these cases. Mayor Pugh received $696.35 from these liquor cases during that period
as his fees and costs, in addition to his regular salary.
That officers acting in a judicial or quasi-judicial capacity are disqualified by their
interest in the controversy to be decided is, of course, the general rule. Dimes v.
Grand Junction Canal, 3 H.L.C. 759; Gregory v. Railroad, 4 O.S. 675; Peace v.
Atwood, 13 Mass. 324;Taylor v. Commissioners, 105 Mass. 225; Kentish Artillery v.
Gardiner, 15 R.I. 296; Moses v. Julian, 45 N.H. 52; State v. Crane, 36 N.J.L.
394; Railroad Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22 Mich.
341; Findley v. Smith, 42 W.Va. 299;Nettleton's Appeal, 28 Conn. 268; Cooley's
Constitutional Limitations, 7th ed., p. 592, et seq. Nice questions, however, often arise
as to what the degree or nature of the interest must be. One is in respect of the effect
of the membership of a judge in a class of taxpayers or others to be affected by a
principle of law, statutory or constitutional, to be applied in a case between other
parties and in which the judge has no other interest. Then the circumstance that there
is no judge not equally disqualified to act in such a case has been held to affect the
question. Wheeling v. Black, 25 W.Va. 266, 280; Peck v. Freeholders of Essex, 20
N.J.L. 457; Dimes v. Grand Junction Canal, 3 H.L.C. 759 (see Baron Parke's Answer
for the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s.c. 2 Roll.Abridg. 93; Evans
v. Gore,253 U. S. 245, 253 U. S. 247; Stuart v. Mechanics' & Farmers' Bank, 19
Johns. 496; Ranger v. Railroad, 5 H.L.C. 72. We are not embarrassed by such
considerations here, for there were available in this case other judicial officers who
had
Page 273 U. S. 523
no disqualification either by reason of the character of their compensation or their
relation to the village government.
All questions of judicial qualification may not involve constitutional validity. Thus,
matters of kinship, personal bias, state policy, remoteness of interest, would seem
generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va.
266, 270. But it certainly violates the Fourteenth Amendment, and deprives a
defendant in a criminal case of due process of law, to subject his liberty or property to
the judgment of a court the judge of which has a direct, personal, substantial,
pecuniary interest in reaching a conclusion against him in his case.
The Mayor of the Village of North College Hill, Ohio, had a direct, personal, pecuniary
interest in convicting the defendant who came before him for trial, in the twelve dollars
of costs imposed in his behalf, which he would not have received if the defendant had
been acquitted. This was not exceptional, but was the result of the normal operation of
the law and the ordinance. Counsel for the State do not deny this, but assert the
validity of the practice as an exception to the general rule. The rely upon the cases
of Ownbey v. Morgan,256 U. S. 94; Murray's Lessee v. Hoboken Land and
Improvement Company, 18 How. 272, 59 U. S. 276-280. These cases show that, in
determining what due process of law is, under the Fifth or Fourteenth Amendment, the
Court must look to those settled usages and modes of proceeding existing in the
common and statute law of England before the emigration of our ancestors, which
were shown not to have been unsuited to their civil and political condition by having
been acted on by them after the settlement of this country. Counsel contend that, in
Ohio and in other States, in the economy which it is found necessary to maintain in the
administration of justice in the inferior courts by justices of the peace and by judicial
officers of like jurisdiction, the only compensation which the State and county
Page 273 U. S. 524
and township can afford is the fees and costs earned by them, and that such
compensation is so small that it is not to be regarded as likely to influence improperly
a judicial officer in the discharge of his duty, or as prejudicing the defendant in
securing justice, even though the magistrate will receive nothing if the defendant is not
convicted.
We have been referred to no cases at common law in England prior to the separation
of colonies from the mother country showing a practice that inferior judicial officers
were dependent upon the conviction of the defendant for receiving their
compensation. Indeed, in analogous cases, it is very clear that the slightest pecuniary
interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter
which he was to decide rendered the decision voidable. Bonham's Case, 8 Coke,
118a; s.c. 2 Brownlow and Goldesborough's Rep. 255; City of London v. Wood, 12
Modern Rep. 669, 687; Day v. Savage, Hobart 85, 87; Hesketh v. Braddock, 3
Burrows 1847, 1856, 1857 and 1858.
As early as the 12th Richard II, A.D. 1388, it was provided that there should be a
commission of the justices of the peace, with six justices in the county once a quarter,
which might sit for three days, and that the justices should receive four shillings a day
"as wages," to be paid by the sheriffs out of a fund made up of fines and
amercements, and that that fund should be added to out of the fines and
amercements from the courts of the Lords of the Franchises, which were hundred
courts allowed by the King by grant to individuals.
It was required that the justices of the peace should be knights, esquires or gentlemen
of the land -- qualifications that were not modified until 1906. The wages paid were
used "to defray their common diet," and soon became obsolete. 1 Holdsworth's
History of English Law, 288, 289. The wages paid were not dependent on conviction
Page 273 U. S. 525
of the defendant. They were paid at a time when the distinction between torts and
criminal case was not clear, Holdsworth, Vol. 2, 363, 365; Vol. 3, 328, and they came
from a fund which was created by fines and amercements collected from both sides in
the controversy. There was always a plaintiff, whether in the action for a tort or the
prosecution for an offense. In the latter, he was called the prosecutor. If he failed to
prove his case, whether civil or criminal, he was subject to amercement pro falso
clamore, while if he succeeded, the defendant was in misericordia.See Comm. v.
Johnson, 5 S. & R. (Pa.) 195, 198; Musser v. Good, 11 Id. 247. Thus, in the outcome,
someone would be amerced in every case, and the amercements generally went to
the Crown, and the fund was considerable. The Statute of Richard II remained on the
statute book until 1855, when it was repealed by the 18th and 19th Victoria. Meantime,
the hundred courts by franchise had largely disappeared. The wages referred to were
not part of the costs. The costs at common law were the amounts paid either by the
plaintiff or prosecutor or by the defendant for the witnesses or services of the court
officers. Burn's Justice, Vol. 1, p. 628. Chitty's Criminal Law, 4 ed. 1841, Vol. 1,
829. See also 14 George III, ch. 20, 1774. For hundreds of years, the justices of the
peace of England seem not to have received compensation for court work. Instead of
that, they were required, upon entering upon the office, to pay certain fees.
Holdsworth, Vol. 1, p. 289; 19 Halsbury's Laws of England, 1152. Local judges in
towns are paid salaries.
There was at the common law the greatest sensitiveness over the existence of any
pecuniary interest, however small or infinitesimal, in the justices of the peace. In
Hawkins, 2 Pleas of the Crown, we find the following:
"The general rule of law certainly is that justices of the peace ought not to execute
their office in their own case [citing 1 Salk. 396], and even in cases where such
Page 273 U. S. 526
proceeding seems indispensably necessary, as in being publicly assaulted or
personally abused, or their authority otherwise contemned while in the execution of
their duty, yet if another justice be present, his assistance should be required to
punish the offender (Stra. 240)."
"And by the common law, if an order of removal were made by two justices, and one
of them was an inhabitant of the parish from which the pauper was removed, such
order was illegal and bad on the ground that the justice who was an inhabitant was
interested, as being liable to the poor's rate. (Rex v. Great Chart, Burr. S.C.194, Stra.
1173.)"
And this strict principle, unless there is relief by the statute, is seen in modern
cases. Queen v. The Recorder of Cambridge, 8 Ellis & Blackburn, 637; Regina v.
Hammond, 9 Law Times Reports (N.S.) 423; The Queen v. Rand, Law Reports, 1st
Queen's Bench, 230;Queen v. Gafford, 1st Queen's Bench Division, 381; 19
Halsbury's Laws of England 1156.
There was, then, no usage at common law by which justices of the peace or inferior
judicial officers were paid fees on condition that they convicted the defendants, and
such a practice certainly cannot find support as due process of law in English
precedent. It may be that the principle, as stated in Blackstone, Book 3rd, page 400,
that the King shall neither pay nor receive costs, because it is the King's prerogative
not to pay them to a subject and is beneath his dignity to receive them, was
misunderstood and led, as suggested by Mr. Lewis in his edition of Blackstone, Vol. 3,
p. 400, n. 60, to the practice in some States, in minor cases, of allowing inferior judges
no compensation except by fees collected of the convicted defendant; but whether it
did or not, the principle relied on did not support the practice. That practice has
prevailed, and still prevails, in Arkansas, Kentucky, Nebraska, North Carolina,
Georgia, Ohio and Texas, and it seems
Page 273 U. S. 527
at one time to have obtained in Indiana, Oregon, Illinois and Alabama.
In two of these States only has the question been considered by their courts, and it
has been held that provision for payment to the judge of fees only in case of conviction
does not disqualify him. Those are Bennett v. State, 4 Tex.App. 72; Wellmaker v.
Terrell, 3 Ga.App. 791. There is no discussion in either of the question of due process
of law. The existence of a statute authorizing the practice seems to have been the
controlling consideration. Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88,
the judge was paid a regular salary, fixed by law. The fund out of which this was paid
was increased by fees and fines collected in his court, but there is no evidence that
payment of his salary was dependent on the amount of his collections or convictions.
In Herbert v. Baltimore County, 97 Md. 639, the action was by a justice of the peace
against a county for services in criminal cases. A new law limited him to $10 a month.
The statement of the case does not distinctly show that, in convictions, he would have
had a larger compensation from his costs collected out of the defendant, but this may
be assumed from the argument. His contention was that the new law was invalid
because it did not give the defendants before him due process. The court held against
him, chiefly on the ground that he must be satisfied with the compensation the law
afforded him. Responding to his argument that the new law was invalid because
justices would be induced to convict when in justice they should acquit, the court said:
"We cannot recognize the force of this suggestion, founded as it is upon the
assumption that the justices will violate their oaths and the duties of their office, and
not upon anything that the law authorizes to be done."
So far as the case goes, it is an authority for the contention of the State, but the issue
thus raised was not
Page 273 U. S. 528
considered at length, and was not one which, in such an action, the court would be
patient to hear pressed by the justice whose constitutional rights were not
affected. Tyler v. Court,179 U. S. 405, 179 U. S. 409; California Reduction Co. v.
Sanitary Reduction Works,199 U. S. 306, 199 U. S. 318.
In the case of Probasco v. Raine, Auditor, 50 O.S. 378, the question arose whether
the fee of 4 percent. payable to county auditors for placing omitted property on the
duplicate list for taxation, which required investigation and quasi-judicial consideration,
was invalid. The court held that it was not, and that the objection urged there could not
be based on the argument that a man could not be a judge in his own case; that the
auditor had no case to be adjudged, but that, on the contrary, he was the taxing officer
before whom other parties were cited to appear and show cause why they should not
bear their equal burden of taxation. The court said that the action of the auditor was
not final so as to cut off further inquiry, but that the whole case might be gone into
anew by proper proceedings in court. An exactly opposite conclusion was reached by
the United States Circuit Court for the Northern District of Ohio in Meyers v.
Shields, 61 Fed. 713, 725 et seq.
In other States than those above-mentioned, the minor courts are paid for their
services by the State or county regardless of acquittal or conviction, except that, in
Virginia, the minor courts receive one-half of the usual fees where there is acquittal.
Four States have put into their constitutions a provision that the State must pay the
costs in such cases in case of acquittal. They are California, Florida, Louisiana and
South Carolina.
The strict common law rule was adopted in this country as one to be enforced where
nothing but the common law controlled, and citizens and taxpayers have been held
incompetent to sit in suits against the municipal corporation of which they have been
residents.Diveny v.
Page 273 U. S. 529
Elmira, 51 N.Y. 506; Corwein v. Names, 11 Johns. 76; Clark v. Lamb, 2 Allen
396; Dively v. Cedar Falls, 21 Iowa 565; Fulweiler v. St. Louis, 61 Mo. 479; Petition of
New Boston, 49 N.H. 328; Commonwealth v. McLane, 4 Gray 427; Fine v. St. Louis
Public Schools, 30 Mo. 166, 173. With other courts, however, and with the
legislatures, the strict rule seemed to be inconvenient, impracticable, and
unnecessary, and the view was taken that such remote or minute interest in the
litigation might be declared by the Legislature not to be a reason for disqualification of
a judge or juror.
A case, much cited, in which this conclusion was reached and in which the old English
corporation cases were considered was that ofCity Council v. Pepper, 1 Richardson
(S.C.) 364. The recorder of the City of Charleston sentenced a nonresident of the city
for violation of a city ordinance requiring him to take out a license for what he did or to
pay a fine not exceeding $20. The contention was that the defendant was a
noncorporator and nonresident, and not subject to the jurisdiction of the city court; that
the recorder was a corporator and interested in the penalty, and therefore was not
competent to try the cause. The Court said (p. 366) in respect to Hesketh v.
Braddock, 3 Burrows 1847, supra:
"It will be remarked that that case depends altogether upon the common law, and if
the city court depended upon the same for its jurisdiction, the objection might be fatal.
But the establishment and jurisdiction of the city court commences with the Act of
1801. By that Act, it is clothed with the power of trying all offences against the by laws
of the city, and for that purpose is given concurrent jurisdiction with the court of
Sessions. This grant of power is from all the people of the State, through their
Legislature, and surely they have the power to dispense with the common law
objection that the corporators
Page 273 U. S. 530
were interested, and ought not to be intrusted with the enforcement of their laws
against others. The authority given to the city court to try all offenders against the city
ordinances impliedly declares that, notwithstanding the common law objection, it was
right and proper to give it the power to enforce the city law against all offenders. That
there was great reason in this cannot be doubted when it is remembered that the
interest of the corporators is so minute as not to be even thought of by sheriff, juror, or
judge. It is very much like the interest which similar officers would feel in enforcing a
State law the sanction of which was a penalty. The sum thus to be recovered goes in
exoneration of some part of the burden of government to which every citizen is
subjected, but such an interest has no effect upon the mind. It is too slight to excite
prejudice against a defendant. The same thing is the case here. For the judge, sheriff
and jurors, are members of a corporation of many thousand members. What interest
of value have they in a fine of twenty dollars? It would put a most eminent calculator to
great trouble to ascertain the very minute grain of interest which each of these
gentlemen might have. To remove so shadowy and slight an objection, the Legislature
thought proper to clothe the city court, consisting of its judge, clerk, sheriff and jurors,
with authority to try the defendant, and he cannot now object to it."
And the same view is taken in Commonwealth v. Ryan, 5 Mass. 90; Commonwealth v.
Reed, 1 Gray 472, 475; Thomas v. Mt. Vernon,9 Ohio 290; Commissioners v. Lytle, 3
Ohio 289; Wheeling v. Black, 25 W.Va. 266, 280; Board of Justices v. Fennimore, 1
N.J.L.190;Foreman v. Mariana, 43 Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha
v. Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104;Commonwealth v. Emery, 11
Cushing 406; Barnett
Page 273 U. S. 531
v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791; State v. Craig, 80 Maine
85.
Mr. Justice Cooley, in his work on Constitutional Limitations, 7th edition, page 594,
points out that the real ground of the ruling in these cases is that
"interest is so remote, trifling and insignificant that it may fairly be supposed to be
incapable of affecting the judgment of or of influencing the conduct of an individual.
And where penalties are imposed, to be recovered only in a municipal court, the judge
or jurors in which would be interested as corporators in the recovery, the law providing
for such recovery must be regarded as precluding the objection of interest."
But the learned judge then proceeds:
"But except in cases resting upon such reasons, we do not see how the legislature
can have any power to abolish a maxim which is among the fundamentals of judicial
authority."
Referring then to a remark in the case of the Matter of Leefe, 2 Barb.Ch. 39, that the
people of the State, when framing their constitution, might possibly establish so great
an anomaly, if they saw fit, the learned author says:
"Even this must be deemed doubtful, since the adoption of the fourteenth article of the
amendments to the Federal Constitution, which denies to the state the right to deprive
one of life, liberty or property without due process of law."
From this review, we conclude that a system by which an inferior judge is paid for his
service only when he convicts the defendant has not become so embedded by custom
in the general practice either at common law or in this country that it can be regarded
as due process of law unless the costs usually imposed are so small that they may be
properly ignored as within the maxim de minimis non curat lex.
The Mayor received for his fees and costs in the present case $12, and from such
costs under the Prohibition Act
Page 273 U. S. 532
for seven months he made about $100 a month, in addition to his salary. We cannot
regard the prospect of receipt or loss of such an emolument in each case as a minute,
remote, trifling or insignificant interest. It is certainly not fair to each defendant, brought
before the Mayor for the careful and judicial consideration of his guilt or innocence,
that the prospect of such a loss by the Mayor should weigh against his acquittal.
These are not cases in which the penalties and the costs are negligible. The field of
jurisdiction is not that of a small community engaged in enforcing its own local
regulations. The court is a state agency imposing substantial punishment, and the
cases to be considered are gathered from the whole county by the energy of the
village marshals and detectives regularly employed by the village for the purpose. It is
not to be treated as a mere village tribunal for village peccadillos. There are doubtless
mayors who would not allow such a consideration as $12 costs in each case to affect
their judgment in it; but the requirement of due process of law in judicial procedure is
not satisfied by the argument that men of the highest honor and the greatest self-
sacrifice could carry it on without danger of injustice. Every procedure which would
offer a possible temptation to the average man as a judge to forget the burden of proof
required to convict the defendant, or which might lead him not to hold the balance
nice, clear, and true between the State and the accused denies the latter due process
of law.
But the pecuniary interest of the Mayor in the result of his judgment is not the only
reason for holding that due process of law is denied to the defendant here. The
statutes were drawn to stimulate small municipalities in the country part of counties in
which there are large cities, to organize and maintain courts to try persons accused of
violations of the Prohibition Act everywhere in the county. The inducement is offered
of dividing between
Page 273 U. S. 533
the State and the village the large fines provided by the law for its violations. The trial
is to be had before a mayor without a jury, without opportunity for retrial, and with a
review confined to questions of law presented by a bill of exceptions, with no
opportunity by the reviewing court to set aside the judgment on the weighing of
evidence unless it should appear to be so manifestly against the evidence as to
indicate mistake, bias or willful disregard of duty by the trial court. The statute
specifically authorizes the village to employ detectives, deputy marshals, and other
assistants to detect crime of this kind all over the county, and to bring offenders before
the Mayor's court, and it offers to the village council and its officers a means of
substantially adding to the income of the village to relieve it from further taxation. The
mayor is the chief executive of the village. He supervises all the other executive
officers. He is charged with the business of looking after the finances of the village. It
appears from the evidence in this case, and would be plain if the evidence did not
show it, that the law is calculated to awaken the interest of all those in the village
charged with the responsibility of raising the public money and expending it, in the
pecuniarily successful conduct of such a court. The mayor represents the village, and
cannot escape his representative capacity. On the other hand, he is given the judicial
duty, first, of determining whether the defendant is guilty at all, and second, having
found his guilt, to measure his punishment between $100 as a minimum and $1,000
as a maximum for first offenses, and $300 as a minimum and $2,000 as a maximum
for second offenses. With his interest as mayor in the financial condition of the village,
and his responsibility therefor, might not a defendant with reason say that he feared
he could not get a fair trial or a fair sentence from one who would have so strong a
motive to help his village by conviction and a heavy fine? The old English cases, cited
above, of the
Page 273 U. S. 534
days of Coke and Holt and Mansfield, are not nearly so strong. A situation in which an
official perforce occupies two practically and seriously inconsistent positions, one
partisan and the other judicial, necessarily involves a lack of due process of law in the
trial of defendants charged with crimes before him. City of Boston v. Baldwin, 139
Mass. 315; Florida ex rel. Colcord v. Young, 31 Fla. 594. It is, of course, so common
to vest the mayor of villages with inferior judicial functions that the mere union of the
executive power and the judicial power in him cannot be said to violate due process of
law. The minor penalties usually attaching to the ordinances of a village council, or to
the misdemeanors in which the mayor may pronounce final judgment without a jury,
do not involve any such addition to the revenue of the village as to justify the fear that
the mayor would be influenced in his judicial judgment by that fact. The difference
between such a case and the plan and operation of the statutes before us is so plain
as not to call for further elaboration.
Counsel for the State argue that it has been decided by this Court that the legislature
of a State may provide such system of courts as it chooses; that there is nothing in the
Fourteenth Amendment that requires a jury trial for any offender; that it may give such
territorial jurisdiction to its courts as it sees fit, and therefore that there is nothing
sinister or constitutionally invalid in giving to a village mayor the jurisdiction of a justice
of the peace to try misdemeanors committed anywhere in the county, even though the
mayor presides over a village of 1,100 people and exercises jurisdiction over offenses
committed in a county of 500,000. This is true, and is established by the decisions of
this Court in Missouri v. Lewis,101 U. S. 22, 101 U. S. 30; In re Claasen,140 U. S.
200. See also Carey v. State, 70 Ohio State 121. It is also correctly pointed out that it
is completely within the power of the legislature to dispose of the fines collected
Page 273 U. S. 535
in criminal cases as it will, and it may therefore divide the fines as it does here, one-
half to the State and one-half to the village by whose mayor they are imposed and
collected. It is further said with truth that the legislature of a State may, and often
ought to, stimulate prosecutions for crime by offering to those who shall initiate and
carry on such prosecutions rewards for thus acting in the interest of the State and the
people. The legislature may offer rewards or a percentage of the recovery to
informers. United States v. Murphy & Morgan, 16 Pet. 203. It may authorize the
employment of detectives. But these principles do not at all affect the question
whether the State, by the operation of the statutes we have considered, has not
vested the judicial power in one who, by reason of his interest both as an individual
and as chief executive of the village, is disqualified to exercise it in the trial of the
defendant.
It is finally argued that the evidence shows clearly that the defendant was guilty, and
that he was only fined $100, which was the minimum amount, and therefore that he
cannot complain of a lack of due process, either in his conviction or in the amount of
the judgment. The plea was not guilty, and he was convicted. No matter what the
evidence was against him, he had the right to have an impartial judge. He seasonably
raised the objection, and was entitled to halt the trial because of the disqualification of
the judge, which existed both because of his direct pecuniary interest in the outcome
and because of his official motive to convict and to graduate the fine to help the
financial needs of the village. There were thus presented at the outset both features of
the disqualification.
The judgment of the Supreme Court of Ohio must be reversed, and the cause
remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.
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